Please help... Draft Defence for PCN

pinky_and_the_brain

Hi everyone, I hope you are all keeping safe and well.

I’ve been a lurking here for a while now, since 2018 to be exact and now it seems it’s my time has come for some much needed help and advice for my Defence.

I’ve now received a County Court Claim Form from Northampton issued 8th Feb 2021 and submitted my AOS on the 10th Feb 2021. The deadline for my defence is Friday 12 March 4pm.

I applied for a SAR last year and received all the info they had and I’ve used this in my Defence to argue their Prima Facie Case.

I’m hoping I’ve followed all the invaluable information correctly and I’ve used the Defence template as advised. I have no legal background so any help would be greatly appreciated. 

Some of you may remember I similar incident with jones the bones in 2019, this is a very similar situation but the opposite way round. I parked in the car park I thought was free for customers but it turns out due to boundaries there were 2 rogue parking spaces which required a pay and display ticket (this is where I parked thinking it was free) but are in what looks like the customer parking area and got issued a PCN, back in January 2018.

Please let me know what you think and I apologise in advance it’s so long, I’ve been working on it for a while and I just wanted to make sure I’d mentioned everything (a lot of things found on here actually) so feel free to take anything out you think is unnecessary. Looks like I can't post links yet so, apologies again for the looooooonnng post!

Thanks again

IN THE COUNTY COURT

Claim No.: xxxxxx

Between

Excel Parking Services Ltd.

(Claimant) 

- and -  

XXXXX                    

 (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 and driver of the vehicle registration XXXX XXX in question but liability is denied.

3.       This action relates to a Customer Only development known as Bounce Revolution car park situated on Siddals Road, Derby DE1 2PY. On the 16th January 2018 the Defendant entered the car park at the material times to attend a children’s birthday party at Bounce Revolution.

4.       The Defendant entered the Bounce Revolution car park following the Bounce Revolution Customer Car Parking sign that stated to turn right and the Defendant parked the vehicle in the first available space within a marked parking bay and not on any yellow lines facing the Bounce Revolution building.

5.       Next to the parking space the Defendant’s vehicle was parked was a free standing A-Board stating “Bounce Revolution Customer Parking Only, maximum 2 hour stay”.

6.       The Defendant did not require a valid permit/ticket to be displayed on the vehicle as they were a customer of Bounce Revolution.

7. The Defendant entered the Bounce Revolution building and submitted the vehicle registration at reception.

8.       When the Defendant returned to the car a Parking Charge Notice was affixed to the windscreen of the vehicle.

9.       The Defendant then revisited the Bounce Revolution reception to inquire about the issue of the parking charge notice. The employees of Bounce Revolution explained the land is privately owned and some parking spaces are for the use of Bounce Revolution customers and the other parking spaces are for the pay and display car park at the rear and the left of the building The Defendant was unaware of this fact at this time. 

10.       The employees of Bounce Revolution advised the Defendant to take photos and appeal the notice as is had happened on a number of occasions to other customers and agreed the signage was confusing.

11.       The location of the customer parking and pay and display parking appears to be misleading, whether deliberately or negligently, it is used for inherent entrapment by the dual PPC on the land. Given that it is divided between two companies, the first company being the Claimant Excel Parking Services Ltd (‘Excel') and the other being 'VCS' . There are no clear demarcations between the areas, allowing the two companies to penalise honest motorists.

12.       The multiple and contradicting signs are in fact unclear and misleading . There were 2 signs as you enter the car park, one the right and one on  the left. The sign on the right states ‘Welcome to Bounce Revolution, turn right” and the one of the left states “Parking £3.50 all day” with an arrow pointing straight ahead to a Pay and Display machine. The Defendant followed the sign that directed her to the venue and turned right to park in a vacant spot what she thought was the  Bounce Revolution Customer Only parking space.

13.       There are approximately 29 car parking spaces within the Bounce Revolution development. A Customer Only system is in operation to regulate parking, however, there are restricted areas of the car park with vehicles are not allow to park in. Upon further investigation, there seems be 2 rogue car parking spaces, as you turn right, facing the Bounce Revolution building which are not in fact customer parking spaces and patrolled by the Claimant, Excel Parking Services.

14.       The 2 random parking spaces in question are not highlighted in any way to differentiate them from the rest of the customer parking apart from the temporary free-standing A-board situated in the adjacent car parking space.

15.       On the 26th February 2018, the Defendant accessed the online portal, and appealed the charge, for the reasons stated above and was rejected on the 2nd March 2018.

16.       The Defendant then appealed to the Independent Appeals Service on 28th March 2018 within the allocated timeframe and the appeal was dismissed on 12th April 2018.

The Claimant’s Defence

17. The Siddals Road Commercial Car Park is private land which motorists are allowed to enter for the purpose of parking their vehicle, provided that they abide by any clearly displayed conditions of parking.

18. It is denied that the Claimant's signage sets out the terms and conditions in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The signage is on the far side of entrance, straight ahead and on the passenger side of the vehicle  and states 'By entering this private land you are entering into a contract with ‘Excel Parking Services’'. The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily without causing an accident. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

19. There is 1 entrance board and 1 tariff board signs on site. The signage on site states “24 Hour Pay & Display Car Park” and “A valid Pay & Display ticket must be displayed inside the front windscreen of your vehicle with the date and time clearly visible at all times.

20.      There is in fact 2 entrance boards one for Bounce Revolution and one for the Siddals Road Pay and Display car park directly opposite each other. The Bounce Revolution Customer Car Park states “If a valid permit/ticket is required, the permit/ticket must be clearly displayed (with all details clearly visible) inside the front windscreen of the vehicle at all times. The Bounce Revolution Customer car park does not require a ticket as the Patrolling Officers is suppose to check the customer vehicle registration at reception.

21. Site photographs and the site overhead supplied show that the signage is appropriately located throughout the car park. 

22. The site photographs and the site overhead supplied only show the signage from the Siddals Road Car park and not the Bounce Revolution car park and don’t take into account the 2 contradicting entrance boards, one on the left and one on the right of the entrance of the car park show that the signage is inconsistent and deceptive.

23. Signage supplied makes it clear that any motorist parking in breach of the Terms and Conditions displayed will be liable for a Parking Charge Notice (PCN).

24. It is unclear which Term and Conditions need to be complied with whether it is the Bounce Customer Car Park or Siddals Road Public Car Park.

25. A series of images were taken showing the location of the vehicle in relation to the signs on site, they are time and date stamped and show the appellant's vehicle parked adjacent to at least one of the warning signs.

26. Upon entering the car park there were 6 warning signs throughout the area for Bounce Revolution and Siddals Road Public Car Park. The warning signs for the Bounce Revolution are in red and black and the warning signs for Siddals Road Public Car Park are blue and yellow. This does not meet accessibility requirements especially motorists who are colour blind. 

27. When entering this private land it is solely the motorist's responsibility to fully comply with the Terms and Conditions displayed, in this case by purchasing a valid Pay & Display ticket for the duration of their stay. 

28. The Bounce Revolution Customer car park does not require a valid ticket as the Patrolling Officer is suppose to check the customer vehicle registration at the Bounce reception.

29. The appellant parked directly in front of a sign which states “Have you paid and displayed?” and they were also immediately adjacent to the site's information board. 

21. The sign which states “Have you paid and displayed?” does not clearly indicate which car park it is referring to. The Pay and Display car park (given the immediately adjoining and non-demarcated pay and display car park operated by Excel) or the Bounce Revolution Customer only parking or any of the other businesses nearby? The relevant sign containing the terms and conditions does not comply with the Code of Practice as to understanding.

22. The sign for Bounce was present indicating that customer parking was to the right of the entrance and not in the location the appellant chose to park. It clearly demarcates the two areas, and we would note again the presence of our contractual and reminder signage will have notified the appellant that they were parked in an area where payment is required.

23.      On closer inspection the arrow on the sign was not permanent and written in chalk which was weathered away by the rain and not illuminated in any way. This sign was also not facing forwards, towards the road like it appears neatly in the Annotated vehicle location document but it appears to have been moved to face sideways on. This free standing A board can be easily moved or knocked by mistake which means it’s placement and the placement of the arrow could be in any direction. Another 2 different signs contradicting each other that can be misinterpreted.

24. We contend the appellant had clear notice the area in which they were parked was part of the private Pay & Display car park. 

25.      There were no clear ground markings anywhere in this area to differentiate which car park area  belong to which company.

26. We maintain that ambient lighting around the car park at the time the appellant parked was sufficient to ensure our signs were clearly visible; furthermore the vehicle should have been using headlights at this time, which would have further illuminated the signs, those signs are reflective for that reason.

27.       At the material times, it was dark and it was raining. The Bounce Customer Car Park free standing A-Board was not illuminated which meant the amended signage with the arrow was even more difficult to see at this time.

28. We maintain that the signs on this site meet the requirements set by the International Parking Community (IPC) Code of Practice . The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature.

29.       There have been a number of publicised cases in the media of motorists who have been wrongfully issued with parking charge notices because of the unclear signage and demarcation on this land. One of the cases appeared in court in November 2019 and the judge dismissed the claim and the defendant was awarded costs.

30. We would note our supplied contravention photographs demonstrate that despite the presence of a white van, our information board and reminder notice were still clearly visible from the location the appellant parked in.

31. The Defendant strongly argues that the information board could not be seen from the car window whilst inside the car because it was observed by a large white van.

32. Third party staff are not authorised to allow motorists to park in contravention of the contractual Terms and Conditions displayed. Conversations that the appellant may have had with third party staff do not nullify the appellant's liability for the PCN, neither does the letter from the manager of Bounce Revolution supplied by the appellant.

33.       Bounce Revolution were the lawful occupiers of the car park at that time so should be allowed to authorise motorists if they thought the PCN was issued unfairly and to nullify the letter from the manager of Bounce Revolution is unreasonable when other parking firms allow the landowner such as retail to intervene and cancel the notice if they wish to do so.

34. If the appellant was unsure as to whether they were parked in the Pay & Display car park or the free car park they could have made use of the helpline displayed on our signage.

35. The Claimant agrees that the Bounce Revolution sign next to the vehicle does state 2 hours free customer parking but because it is not an Excel Parking Services sign has dismissed this claim and said the Defendant should have asked for clarification. If the sign states 2 hours free customer parking with the correct Bounce Revolution logo, why would clarification be required.

36.       Since the closure of Bounce Revolution in December 2018 , the property has been redeveloped and reopened as Jumping Inflatable Fun in August 2019. The parking arrangements at this car park are now different and all areas are governed by a pay and display operation.

pinky_and_the_brain

37.       In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. The charge is unconscionable and relies upon a misleading business practice as described above and the attempt to add a further sum in 'damages' that a private parking firm is not entitled to collect, is a clear abuse of process. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

38.  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 Clamant 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.

39.       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.

40.       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.  

41.  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').

42.  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

43.       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.  

44.       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.

45.   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.  

46.   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.

47.       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.

48.   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.

49.   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.

50.  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:

51.   (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.

52.   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:

D_P_Dance

Have you complained to your MP?

nosferatu1001

The instructions in the newbies thread say ot only show us what you have changed. Have you changed every single para? If NO, then repost only what you have changed. That shoudl be, usually, a small change to para 2, and then 3 is a short,  precise summary of background facts that set the scene

Umkomaas

Looks way too long for a Defence - almost 4,000 words (even the very lengthy template is only half that number of words). 

There seems to be way too much Witness Statement stuff in it describing the events. The Defence needs to include just a short précis about the parking event and background details so there is some context for the Judge. 

pinky_and_the_brain

Hi @Umkomaas, thanks for taking the time to read it all and reply. Much appreciated.
I'll go back and edit it more and take the stuff out that can go in the WS, thank you

Umkomaas

Some of you may remember I similar incident with jones the bones in 2019, this is a very similar situation but the opposite way round.

Bounce Revolution has a bit of history on this forum over and above the one you quote. Here are some other threads from which you might gain some further insights. 

https://forums.moneysavingexpert.com/discussion/6213735/excel-parking-ticket-deadline-for-witness-statement-is-36-hours/p1

https://forums.moneysavingexpert.com/discussion/5972956/vcs-and-not-a-pcn/p1

https://forums.moneysavingexpert.com/discussion/5719213/paid-for-parking-but-in-the-wrong-machine

pinky_and_the_brain

Hi @D_P_Dance, no there didn't seem much point as the area has now been completely changed in the to all pay and display parking so there's no confusion

pinky_and_the_brain

Apologies @nosferatu1001 I must have missed that bit and sorry to waffle on, I'm sure I do brief and precise

pinky_and_the_brain

Bounce Revolution has a bit of history on this forum over and above the one you quote. Here are some other threads from which you might gain some further insights. 

This is amazing @Umkomaas , thank you so much. I understood there have been a number of incidents at this car park. I did try and look for other cases on here but couldn't find any more. I'll take a look

KeithP

pinky_and_the_brain said:

I’ve now received a County Court Claim Form from Northampton issued 8th Feb 2021 and submitted my AOS on the 10th Feb 2021. The deadline for my defence is Friday 12 March 4pm.

With an Acknowledgment of Service filed on 10th February, I believe your Defence filing deadline to be 4pm on Wednesday 10th March.

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.