BW Legal Autoreply - how much info to give

Coupon-mad

  Link Parking  The Claimant sent the Defendant a NTK Notice to Keeper...etc, etc.

Is this the type of information I should include?

Only once you have changed it all to match the third person style of a defence.  Not ''I'', not ''my''...and no acronyms like NTK that you haven't explained.  And in a million zillion years I would NOT say you took a phone call. 

Porchahontas

Coupon-mad said:

  Link Parking  The Claimant sent the Defendant a NTK Notice to Keeper...etc, etc.

Is this the type of information I should include?

Only once you have changed it all to match the third person style of a defence.  Not ''I'', not ''my''...and no acronyms like NTK that you haven't explained.  And in a million zillion years I would NOT say you took a phone call.  

Again, thank you all so much - I really appreciate your advice and guidance.

Le_Kirk

Porchahontas said:

Coupon-mad said:

Like we told you already, of curse you can defend as long as you win the race, and the good thing is, it's the weekend and you have time to do this today or tomorrow.  You won't be doing anything on MCOL. 
The TEMPLATE DEFENCE thread tells you what to do and how, and you won't be clicking on 'start defence'.

Thank you Coupon-mad.  I am in the process of editing the template now, and have a question about the 'facts as known by the defendant' point 3:  Link Parking sent me a NTK first letter dated 5th March 2020 saying a PCN was overdue, but I had never been issued a PCN.  They also said that they had affixed a parking charge notice to my windscreen on 1st February 2020 15:18.  I had driven into this parking area at the rear of the railway station with the intention of parking there, but did not stay - I paused there but my engine wasn't even turned off as I took a call and had to return home to attend to my children was reading the terms and conditions on the board [or similar words].  They definitely didn't give me a ticket did not place a PCN on my the windscreen.  This first amount was for £100, and they said it would rise to £160 in the first instance of further action.  Is this the type of information I should include?

As well as editing to third person, maybe the other changes as above.

Porchahontas

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 admitted that the Defendant was the driver of the vehicle in question. 

3.  The Claimant sent the Defendant a Notice to Keeper dated 5th March 2020 advising that a Parking Change Notice was overdue.  The Notice to Keeper also stated that a Parking Charge Notice had been affixed to the Defendant’s windscreen on 1st February 2020 15:18, and that the amount due to the Claimant was £100.  The Claimant stated that the amount due would increase to £160 in the first instance of further action, should the amount remain unpaid after 28 days.  The Defendant admits driving into the NOLTON HOUSE SIMPLY CAR PARK CF31 3BN with the intention of parking there, and had paused there to attempt to read the online terms and conditions of the car park due to the fact that the print on the signage was unclear to the Defendant.  The defendant did not vacate the vehicle or turn off the engine.  They Claimant definitely did not place a Parking Charge Notice on the windscreen.

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

2 should say keeper and driver , removing the second sentence , keep it simple and get it emailed ASAP as a signed PDF attachment , you do not have time to wait around for comments

nosferatu1001

You were told to get this filed over the weekend, asnd no later than 8am monday. 
You did not do so, so get ti done. Do you reaslise you are in a race now>? YOU. LOSE. with no take backs if you fail to beat them now. 

Coupon-mad

Do it right now and don't ask us for comments.  You may well have already lost the race now - unless you are showing us what you did submit already (HOPE SO!).

Porchahontas

Coupon-mad said:

Do it right now and don't ask us for comments.  You may well have already lost the race now - unless you are showing us what you did submit already (HOPE SO!).

I had submitted this when I updated MCOL with the detail, and added a comment to that effect in my post.  It appears I overtyped it while copying and pasting. Apologies for any confusion caused.
 

nosferatu1001

? Are you saying you used MCOL to file your defence?
 ThaT IS not how you do it. You file it ONLY by email. 

KeithP

Porchahontas said:

Coupon-mad said:

Do it right now and don't ask us for comments.  You may well have already lost the race now - unless you are showing us what you did submit already (HOPE SO!).

I had submitted this when I updated MCOL with the detail, and added a comment to that effect in my post.  It appears I overtyped it while copying and pasting. Apologies for any confusion caused. 

What do you mean by "when I updated MCOL"?

Nobody said anything about doing anything on MCOL.

It looks to me that you have probably inadvertently filled 'a defence' via the MCOL website.

Crazy!! Why did you not just follow the explicit instructions freely given to you?

I'm out. Good luck.