Building defense as registered owner, but not driver for court claim - any help greatly appreciated!

onepiece

Hi there
I have read the newbies thread and thank you for the amazing work in compiling all of this information.
I received a court claim form dated 15/3/21 and have completed the AOS on the 20/3/21.
The claim is for an unpaid PCN, for which I was not the driver, but I am the registered keeper. I know who the driver was - but from what I can tell through looking at the forum, I don't have to declare who the driver was? 
TBH, I am worried I don't have much of a leg to stand on, as the driver did not purchase a ticket at all, due to the fact that they didn't check for signs - thinking the car park was free based on previous local knowledge, not accounting for the fact that it had changed- obviously! I have visited the site and can see that whilst there are signs, there are also signs for all sorts at this location - Covid, local history info, events etc and they all have the same or similar colour scheme. Could this be used as a defense?
The claim has been made by Civil Enforcement Ltd.
Apologies if my questions are stupid- trying not to be overwhelmed but.. I am a little!

Many thanks.

KeithP

onepiece said:

I received a court claim form dated 15/3/21 and have completed the AOS on the 20/3/21.

Hello and welcome.

With a Claim Issue Date of 15th March, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 19th April 2021 to file your Defence.

That's over three 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.

nosferatu1001

Did the cllaimant comply with POFA2012, schedule 4, para 8 OR para 9?
If YES then not being the driver is unimportant, and is not a defence to the claim. 

Redx

As above , POFA is your friend or enemy , check , do not assume

Ownership is irrelevant , but being RK is highly relevant

There is no S in DEFENCE , so only use UK English

Email a SAR to the DPO at CEL attaching a copy of the claim form as proof of I D under the GDPR law to obtain all your data , including checking the NTK PCN for POFA compliance or non compliance

onepiece

nosferatu1001 said:

Did the cllaimant comply with POFA2012, schedule 4, para 8 OR para 9?
If YES then not being the driver is unimportant, and is not a defence to the claim. 

How do I know whether they have complied with this? I have checked the court claim form and cannot see any mention.

Fruitcake

Compare the NTK, word for word, line by line, with that of the PoFA wording. 

If a NTD was left on the windscreen followed by the NTK, then para 8 2 f will apply
If the NTK was issued using ANPR then para 9 2 f will apply.

The NTK must comply with both dates and wording as required by the PoFA.

nosferatu1001

onepiece said:

nosferatu1001 said:

Did the cllaimant comply with POFA2012, schedule 4, para 8 OR para 9?
If YES then not being the driver is unimportant, and is not a defence to the claim. 

How do I know whether they have complied with this? I have checked the court claim form and cannot see any mention.

By reading the newbies thread, by looking at the Notice to Keeper that was received, assuming it was, etc, and by reading POFA
They do not have to styate "we complied with POFA"
YOU have to read the legislation, which is simple (bar the meaning of the word given which trips a lot of people up) and compare it to the document they sent initially, which is THE NtK (ie  the one and only, accept no duplicates, etc)

Umkomaas

If it's CEL, sometimes they send PoFA-compliant NtKs, sometimes they don't, with no rhyme nor reason for doing either. 

The quick way to check is if they have a sentence in their NtK which commences something like 'If after 28 days from the date given ...... ' and it's normally 'hidden' in the section about whether the registered keeper is a hire company (don't ask why, it's as mysterious to us as it is to you, and we've been at it for years!). 

onepiece

Hi there all

I wonder if anyone could please sanity check my defence? I have spent a lot of time reading all the advice on here, but I must admit this is a lot out of my skill set! Any help gratefully received.

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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.

 

3. On investigation of this claim the Defendant has revisited the site and notes that it is not possible, due to double yellow lines, to stop and see the parking sign that is lost amid multiple, non-parking related, signs referencing; local events, historic matters, Covid 19 warnings and other such miscellaneous signs, which are all in the same colours as the parking signage. The parking signs are completely lost amid the clutter of these other signs and without significant time to analysis each sign it is not possible, in the time taken to drive into the carpark, to see the sign pertaining to parking. Upon further investigation of the site, it takes a thorough search to find signs pertaining to parking as these are positioned approximately 12 feet above the car park on small signs, with small writing on which is impossible to read from the ground. 

 

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:

D_P_Dance

 I know who the driver was -

Do you?  Do you really?  Were you in the passenger seat at the time?  If not, how do you know?  

Have you complained to your MP?

onepiece

I haven't complained to my MP as I was under the impression that once it had gone to court it wouldn't help. I have a week until I need to submit this - I shall email them if it will help but in mean time need to make sure my defence is good enough to send off.