County court hearing BW legal - Defence draft

VDubT5

Hi all,

I'm looking for a little help with my defence draft

This is my first post – I have read through the newbies thread and am very grateful for the clear guidance. I feel that now though I must start my own thread and ask for your support.

Using the template provided on this forum, I am currently preparing my defence for a parking ticket my partner received from Premier Park in 2019. I am dealing with bwlegal. I have acknowledged service through MCOL and need to submit a defence in mid-January. I have read quite a few different defences and have started to add what is relevant into mine (paragraphs 2 and 3). I have heard on so many threads about not putting in too much detail about my case so I don’t want to say much more. However apart from the usual – poor and inadequate signage- I don’t have a huge amount of points to add in my defence. I also didn’t know whether it was worth mentioning the time in the car park as it was just over 20 minutes and although the car park is only small, it can get busy during the  school holidays (it was Easter) so would have taken some time to get through. This is all hypothetical though as we are claiming the driver is unknown.

If there is anything else that would help you understand my case or anything else I should add into my defence, I would be grateful of your advice.

Thanks in advance guys.

 

IN THE COUNTY COURT

Claim No.: XXXXXXXXXXX

Between

Premier Park

(Claimant) 

- and -  

XXXXXXXXX

 (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. 

The defendant does not know who the driver was on the day in question.  

3. On hearing of the parking charge by post, the defendant visited the site. The time of the alleged infraction was in the evening just before sunset. Upon revisiting, it is clear that the signs are wholly inadequate. The largest sign visible is a large P to show that there is parking however this sign does not mention a charge.  Further signs showing the charges are not as easily visible, especially in the evening. As you turn into the car park, the first sign that mentions parking restrictions is up on a pole to the left. The entrance to the car park is on an upward incline. Therefore, from the driver’s position, it is difficult to see as your view is restricted initially by the lower vision point.

As the site uses ANPR style cameras, they pick up the time of entry and exit to the car park which totalled a time of XXXXXX. The defendant claims that there is a difference between the time parked and the time in the car park and that the charge claimed by the claimant is not a true estimate of loss for this time period. Furthermore, the date in question took place in the school Easter holidays. As this car park is located in a seasonal holiday destination, the time taken to move through and out of a car during this time cannot be disregarded.

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:

 

 

Redx

Only post 2 & 3 , not the rest

Post the issue date from the CCBC claim form below , plus the AOS date from MCOL website too

Confirm that you have emailed a SAR to the DPO at PP too

Did P P comply with POFA ? Yes or no ?

KeithP

Hello and welcome.

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

VDubT5

Post the issue date from the CCBC claim form below , plus the AOS date from MCOL website too

Confirm that you have emailed a SAR to the DPO at PP too

Did P P comply with POFA ? Yes or no ?

Issue date - 16th December
AOS date - 21st December
I have emailed a SAR and received a response.
POFA is the part I am unsure of - I have read about this on the forums but am not quite clear on it and how it affects me.

Redx

if you are the keeper and the claimant complied with POFA, an 8 year old law, then as keeper you can be deemed as liable, even if you were not driving

if the claimant failed POFA and you were not the driver, they have failed under the law and as keeper you would not be liable so that is the best defence for a keeper who was not the driver

so deciding how you are defending this, on what basis , keeper , driver , or keeper and also driver, is crucial to approaching the wording in 2 & 3

no point in a driver hiding behind POFA if the claimant complied with POFA

all this should have been dealt with on the initial appeal to P P and the subsequent POPLA appeal, much easier than in court

VDubT5

Thanks for your quick response - that is clear. I have had a quick read of what should be included and shall go over the documentation I have and get back to you. 
With regards to an appeal, I ignored earlier correspondence as this tactic had been successful before! Not great in hindsight but here we are.

Thanks again.

Umkomaas

I ignored earlier correspondence as this tactic had been successful before!

Not for most in the past 8 years. 

1505grandad

A heads up  -  make sure the claimants name is as stated on the claim form in front of you.

KeithP

VDubT5 said:

Issue date - 16th December
AOS date - 21st December

With a Claim Issue Date of 16th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 18th January 2021 to file your Defence.

That's 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.

Coupon-mad

The defendant does not know who the driver was on the day in question. 

Only say the above if it is TRUE.  Think about it and look at the statement of truth you are signing.

You are going to remove that dreadful rubbish about no pre-estimate of loss, from #3, aren't you? 

That died five years ago when the Supreme Court had a brain fart and decided to say 'GPEOL' is no longer required, that automatic, high parking charges are not a problem for anyone in Britain and thereby condemned the public to higher and higher penalties being blasted at innocent people going about everyday life. 

The Supreme Court could have stopped all this and would have saved tens of thousands of claim pressure on the courts and removed the worst excesses from a rotten industry.  Even the robo-claim solicitors would have slunk away.

But heck no.  They knew better.

VDubT5

Afternoon all,
Thanks for the advice so far. I have edited my draft and have completed some further reading of examples on the forum. I've attached the edited section instead of the whole defence again. I would appreciate your feedback on the content but also as to whether I am now adding in too much detail which could perhaps come later in the WS. 
Thanks in advance. 

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. The Defendant was not the driver at the time. The allegation appears to be that the motorist fails to make the appropriate tariff payment based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper not purchasing the appropriate parking time or of the vehicle being parked, as is mentioned in the initial PCN.

3a. On hearing of the parking charge by post, the Defendant visited the site in order to submit a defence. The time of the alleged infraction was in the evening just before sunset. Upon revisiting, it is clear that the signs are wholly inadequate. The largest sign visible is a large P to show that there is parking however this sign does not mention a charge.  Further signs showing the charges are not as easily visible, especially in the evening as they are not lit. The only lit sign is high up and is not visible as you enter the car park as you would need to face back towards the entrance to see it. As you turn into the car park, the first sign that mentions parking restrictions is up on a pole to the left. The entrance to the car park is on an upward incline. Therefore, from the driver’s position, it is difficult to see as your view is restricted initially by the lower vision point.

3b. As the site uses ANPR style cameras, they pick up the time of entry and exit to the car park which totalled a time of 22 minutes. The Defendant claims that there is a difference between the time parked and the time in the car park. Furthermore, the date in question took place in the school Easter holidays. As this car park is located in a seasonal holiday destination, the time taken to move through and out of a car during this time cannot be disregarded.

3c. The claimant is put to strict proof of any breach and of their decision making in processing the data and the human intervention in deciding to issue a PCN and why, as well as the reasoning behind trying to collect £100 instead of the £1 tariff, if it is their case that this sum went unpaid.

3d. It is not remembered whether an occupant of the vehicle did see a PDT machine and pay a tariff/input the VRN, and the Defendant is none the wiser due to the lack of information by the claimant. The PCN could mean that the claimant is suggesting that a wrong VRN was recorded by the keypad, but it is impossible for the Defendant to be certain about the alleged breach and to make an informed decision about what to say by way of defence, which puts the Defendant in a position of disadvantage.