Uploading a file

Coupon-mad

No, no, the RobertCox example is to his witness statement, not his defence.  The NEWBIES thread makes it clear which is the template defence.

Fruitcake

There are five sticky threads on this forum.

The one currently at the top is the one you want.

It's here, but I am at a loss to understand why you haven't found it and used it yet.

Suggested template defence to adapt for all parking charge cases where they add false admin costs — MoneySavingExpert Forum

Read the first post thoroughly, read the second post thoroughly, then go back to paragraphs 2 and 3 of the second post. Amend it to suit your case.
Post those two paragraphs here, and only those two (unless you need perhaps another one or two at the most and renumber the rest, not another dozen or so).

I do not know how to make it any clearer.

Not_A_Hope

Fruitcake - I have used the TEMPLATE DEFENCE - NEW FROM OCTOBER 2020 but deleted the standard template paragraphs to make it smaller as suggested. The template paragraphs in my draft version are from 18 onwards (with a proposed modification to 18 included because I could find any references to indemnity). The letters I have received had the IPC logo but the signs on the car park appear to have both IPC and BPA so I assumed that they were signed up to the code of practice.

Nosferatu1001 - I thought the purpose was to try to get the claim struck out at this stage based on their exaggerated claim (DJ Grand - Southampton abuse of process) or at least to get the PPC to send particulars that meet the Practice Direction Code of Practice. If they don't the court may strike it.

I get the point everyone is making about being concise. Are you suggesting I basically include para 3 of my draft into the template about what happened on day 1 and nothing to do with their appeal process, updating their signage, meeting the requirements for particulars of claim in their LBC. i.e. which sections / themes are you suggesting not relevant to a later defence?

Coupon-mad - I realise now I may have accessed the robertcox example further down a Newbie thread. The fact that the two files it contained were titled Defence and the other as Witness has confused me as to what I should include at this Defence stage and what should be written later.

nosferatu1001

Why have you adapted anything other than para 2 and 3?
all that matters for a ppc is which ROUND logo they have in their signs. 

You know Southampton was appealed and is not included anywhere near the template now, and further and better particulars happens rarely. You're not going to get a strike. 

There. Is. No. Later. Defence. What you submit now is it. You've read the newbies thread so you know for a fact no further defence is filed. What you WILL file is a witness statement, the withess statement sets out facts

adapat para 2 and 3 as instructed. Only adapt The others if you know better.  

Defence now
then DQ 
then WS 

that order 

Fruitcake

Not_A_Hope said:

Fruitcake - I have used the TEMPLATE DEFENCE - NEW FROM OCTOBER 2020 but deleted the standard template paragraphs to make it smaller as suggested. The template paragraphs in my draft version are from 18 onwards (with a proposed modification to 18 included because I could find any references to indemnity). The letters I have received had the IPC logo but the signs on the car park appear to have both IPC and BPA so I assumed that they were signed up to the code of practice.

Nosferatu1001 - I thought the purpose was to try to get the claim struck out at this stage based on their exaggerated claim (DJ Grand - Southampton abuse of process) or at least to get the PPC to send particulars that meet the Practice Direction Code of Practice. If they don't the court may strike it.

I get the point everyone is making about being concise. Are you suggesting I basically include para 3 of my draft into the template about what happened on day 1 and nothing to do with their appeal process, updating their signage, meeting the requirements for particulars of claim in their LBC. i.e. which sections / themes are you suggesting not relevant to a later defence?

Coupon-mad - I realise now I may have accessed the robertcox example further down a Newbie thread. The fact that the two files it contained were titled Defence and the other as Witness has confused me as to what I should include at this Defence stage and what should be written later.

I do not understand any of what you have done. The template defence has 18 paragraphs. You have been told over and over again to adapt two of them, paragraphs 2 and 3, and post them here. They should not be much be longer than the rest of this post.

You have not done this. What you have done makes no sense to me.
I do not understand why you keep blundering on instead of starting again as advised. Forget everything you have already posted and start again.

I give up. I don't like doing that but I really, really do not understand why you do not understand what the very experienced regulars are asking you to do.

Two effing paragraphs is all we ask, want, or need to see. 

You only get one chance.

Goodbye.

Coupon-mad

 I thought the purpose was to try to get the claim struck out at this stage based on their exaggerated claim (DJ Grand - Southampton abuse of process).

Nope that's old news. That is why the template defence no longer attaches the Southampton case.

Please start again with the template defence, which doesn't go beyond 18 paragraphs and needs the tiniest of tweaks only. 

You are not meant to add anything to it except para 2 and 3 and the template defence thread makes that clear.  Takes half an hour max, surely, to just add the facts about the car park and what happened, or if the Defendant doesn't know and received no Notice to Keeper then that's what the D says in para 3. 

It's merely the facts as you know (or don't know) them.  How do some posters get in a twist, when adding one paragraph and changing nothing else?  Forget RobertCox's thread, you were not even meant to be looking at witness statements yet, no wonder you got confused.

Not_A_Hope

Thanks Guys. I didn't know the Southampton case was appealed. At least I understand how I could have fallen into a trap of my own making. I will start a new thread with just what happened on the date of the alleged contravention and not on what has happened all the way through to receiving the County Court Claim Form

Umkomaas

Please don't start a new thread. Just put what you need to tell on this one please. 

Not_A_Hope

Here it is in its entirety. Only paras 2 and 3 amended. Do you need to see a redacted Particulars of Claim to see what is being defended?

IN THE COUNTY COURT

Claim No.: XXXXXXX

Between

XXXXXXXXXX

 (Claimant) 

- and -  

XXXXXXXXXX

 (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.      The Defendant entered XXXXXXX car park in XXXXXX, parked and promptly attended a ticketing machine, with his passenger who was a witness to the event. Not having used the car park before, the prominent signs at the entrance suggested it was a normal pay and display. He did not see any signs suggesting ANPR cameras were in use, any details of Terms or Conditions nor a requirement to input his car registration number. The only payment machine was located in the narrow turning area of the entrance which meant its use requires users to stand in the single track access road, blocking traffic entering and leaving the car park and affecting buses at the adjacent busy bus station. Because of its potential hazardous location he quickly checked the rates and paid £1 for a ticket lasting for an hour. He then noticed the keyboard and wondered what it was for as the pay machine had not prompted him to enter anything and had issued the ticket. He took the ticket that was issued and put this clearly on the dashboard of his car returning 30 minutes later to leave the car the car park.

 

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:

 

 

Ralph-y

I hope you start to try and understand what the forum helpers need to help you

you where asked to just post up 2 paragraphs

like this

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

3.      The Defendant entered XXXXXXX car park in XXXXXX, parked and promptly attended a ticketing machine, with his passenger who was a witness to the event. Not having used the car park before, the prominent signs at the entrance suggested it was a normal pay and display. He did not see any signs suggesting ANPR cameras were in use, any details of Terms or Conditions nor a requirement to input his car registration number. The only payment machine was located in the narrow turning area of the entrance which meant its use requires users to stand in the single track access road, blocking traffic entering and leaving the car park and affecting buses at the adjacent busy bus station. Because of its potential hazardous location he quickly checked the rates and paid £1 for a ticket lasting for an hour. He then noticed the keyboard and wondered what it was for as the pay machine had not prompted him to enter anything and had issued the ticket. He took the ticket that was issued and put this clearly on the dashboard of his car returning 30 minutes later to leave the car the car park."

then people could comment on the words you have used , not the rest of the words that should be unchanged

Ralph