CCJ Sent to old address - Napier Parking, BW Legal

ngwino88

Hi, finally got there with getting access to the most recent draft defence template. Please see my draft defence below:

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 is not aware of whether they were the driver or not on the date and location stated by the Claimant. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known.

The Particulars of Claim that are known, offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago.  It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention.  A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 8 or 9 (as the case may be) of the POFA.

The Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least all of the following information:

- Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge

- A copy of any contract it is alleged was in place (e.g. copies of signage)

- How any contract was concluded (if by performance, then copies of signage maps in place at the time)

- Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper

- Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter

- If charges over and above the initial charge are being claimed, the basis on which this is being claimed

- If Interest charges are being claimed, the basis on which this is being claimed.

- Evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to an attempt at increase 'recovery' despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed).

- Show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant

- Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

 

3.  It is neither admitted nor denied that on 22 September 2018 the Defendant's vehicle was parked at North Street car park in Peterborough. Due to the length of time passed since the alleged incident the Defendant is unable to accurately recall the date in question. However, when using car parks every effort has always been made to pay for parking with the Ringo app, always being the first choice and method of payment. If this car park was used the payment would have been made using Ringo and if not, this may have resulted from an error with the app not working or the pay machine not working. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car after over 16 months later, as I first heard about the claim on 23 September 2020 through an email notification about a change in my credit file. Following this I have received multiple calls from the Claimants solicitors pushing me to pay. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument. 2.9 Additionally, due to the length of time, the Defendant has little to no recollection of the day in question.

For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, the Defendant is not aware of any such order being made upon him.

Furthermore, given the time delay of approximately more than 16 months from the alleged breach of contract, it is unreasonable to expect the Defendant to have a record of who was driving the vehicle at the time of the offence.

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.

 Is the Judgment from Southampton the only one recommended to append?

 

Coupon-mad

Looks fine except your #2 says a few times ''I did this/that'' but the rest of the defence shows you that this should be all in the 3rd person ''the Defendant''.

 Evidence how a parking charge which the BPA Code of Practice 

Napier are not in the BPA AOS and left that scheme a good few years ago, so that Code has no relevance to them.

ngwino88

Coupon-mad said:

Looks fine except your #2 says a few times ''I did this/that'' but the rest of the defence shows you that this should be all in the 3rd person ''the Defendant''.

 Evidence how a parking charge which the BPA Code of Practice 

Napier are not in the BPA AOS and left that scheme a good few years ago, so that Code has no relevance to them.

Hi, okay thanks I will amend #2 to make sure to speak in 3rd person and remove the info related to BPA AOS.  Thanks again!

ngwino88

@Coupon-mad -  Is the Judgment from Southampton the only one recommended to append?

KeithP

ngwino88 said:

@Coupon-mad -  Is the Judgment from Southampton the only one recommended to append?

There is no recommendation to even append that.

Coupon-mad

Why are you reading the wrong thing, when the 1st and 2nd post of the TEMPLATE DEFENCE thread do NOT have that?

ngwino88

Hi all, I was just double checking as did not want to leave anything key out. All submitted now. Thanks all for your help

ngwino88

Hi all, thank you so much for your help to date. I submitted everything including CC'ing the claimant as well so that they can see the bundle I put together as instructed by the letter from the court. Today I received the email below from BW-Legal and uncertain as to how to respond or if I should respond at all. Any guidance on this will be really appreciated.

ngwino88

If the screenshot is not clear please see below the email pasted:
Dear ....

Our Client: Napier Parking Limited

We write in reference to the above matter.

Having reviewed your witness statement, it is noted that you have admitted that you  “may have overlooked my V5C”. Under Regulation 18 (1) of The Road Vehicles (Registration and Licensing) Regulations 2002, it is a requirement for motorists to promptly notify the DVLA of any new name/address of the registered keeper of a vehicle, and a failure to do so can be deemed an offence.

Accordingly, our client is somewhat concerned that you are, on the one hand, admitting your own failure of updating the DVLA properly, yet on the other are attempting to seek that the Judgment be set aside and recover the £255.00 application fee from my client. Our Client is confident that should this matter not be resolved prior to the hearing, that your application will be dismissed and our Client awarded their costs for dealing with the same.

Please note that we have previously emailed you on a without prejudice basis on 20 November 2020, and have not yet received a response. We kindly request that you consider our email of 20 November 2020 and respond accordingly, as our Client does, of course, remain open to discussing an amicable resolution.

Kind regards,

....

BW-Legal

nosferatu1001

Entirely up to you
Theyre wrong, as they had reason to believe the address was not a good address for service; teh complete lack of any response to any notice is an indication the address is not right. It is not proof, but that isnt required. 
What was their WP offer? 
You could point that out to them - that they had no indication this address was a good address for service, yet wrote a statement of truth to that effect when they filed the claim. You are confident that the coutr will not dismiss the claim and will award you the £255 filing fee, plus your costs of attending the hearing. They could avoid that by consenting t othe set aside, paying you the cost of the filing, and agreeing to drop the claim as you are confdent they have no chance of success against you in a court hearing. This offer has real value, as it wil reduce their costs when you win.