Parking Ticket - Gladstone Solicitors

manutd99

Part 2 which is from the template

7      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.

8    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.

9    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.  

10    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').

11  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

12  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.  

13   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.

14  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.  

15  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.

16  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.

17  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.

18  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.

 

19    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:

20   (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.

21    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 read this?

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Coupon-mad

In 6/1, how do you know the signage was cluttered if you don't know who was driving?  You'd have to explain how you are familiar with the place.

Remove 6.2

Remove 3.2. and keep the detail of the POPLA Annual Report for the later witness statement.

Keep 3.1. but remove the double typing error here:
3.1  POPLA’s lead adjudicator Lead Adjudicator

1505grandad

Also:-

Para 3.1  -  typo  -  "....... Lead Adjudicator Henry G(l)eenslade,...."  -  G(r)eenslade

manutd99

Coupon-mad said:

In 6/1, how do you know the signage was cluttered if you don't know who was driving?  You'd have to explain how you are familiar with the place.

Can I say the defendant has gone to the location to check signage after receiving the court paperwork? or best to remove

Coupon-mad

Yes you can say that.

manutd99

Thanks coupon-mad as always. How do you do this. Helping so many and for so many years
Part one with amendments. Good to go now? anything changes?

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (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.           There is no direct evidence produced by the Claimant that the defendant was the driver and there is no evidence for the court to infer that the defendant was. There is no case law to support the proposition that there is a presumption (rebuttable by the Defendant) that the keeper was the driver (a reverse burden of proof). R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605, CPS v AJH Films [2015] EWCA Civ 1453 and Elliott v Loake do not provide that there is a reasonable presumption that the registered keeper of a vehicle is the driver. This is trite law.

3.1  POPLA’s Lead Adjudicator Henry Greenslade, experienced Counsel, states in its 2015 Annual Report that there is no presumption in law that a keeper of a vehicle is its driver, and keepers have no legal obligation whatsoever to disclose the identity of the driver to a private parking company.

3.2  The Claimant’s assertion that the Defendant must name the driver under POFA (paragraph 6) is wrong.

3.3  The Defendant is fully aware that a keeper of a vehicle can potentially be held liable for a charge issued to a driver of that vehicle, but only in the event of strict and full compliance with the applicable statute. There is no other lawful way to hold a keeper liable for the actions of a driver on private land.

 

3.4  Fatally to the Claimant’s case, the document which purports to be a POFA-compliant NtK, dated 14th December 2020 is not compliant with the requirements of Schedule 4 as detailed below.

 

Paragraph 9 (2) (f) states

“warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given”.

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

 

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

There is no such warning on the NtK.

3.5  It is clear that the Claimant has not complied with this condition, and there is no legal basis whatsoever to enforce the parking charge against the Defendant as the registered keeper.

3.6  Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver

 

5    Claimant’s case: offer made in signage displayed on the Land/Site. Defendant’s case: burden of proof not satisfied – Claimant has not shown that an offer was made, what its terms were and whether it had any authority or locus to make any offer, the signage it relies on is forbidding and it had no locus to make any offer.

6    Defendant’s case: Claimant falls at the first hurdle - it cannot show that an offer was made, nor its term. The Defendant makes the following points, having gathered evidence and considered the signage at this location:

6.1   The terms offered must be clear and unambiguous. They were not. The signage was cluttered, small and illegible to motorists, so any terms were not sufficiently brought to the driver’s attention (all requirements determined by Beavis and by paragraph B18.3 of the CoP. The defendant attended the carpark after receiving the court papers therefore established this.

6.2  The keeper of the vehicle does have a permit therefore was authorised to park on this land but was not displayed.

6.3  There is no reference in the sign to parking for unauthorised vehicles being prohibited, no reference to parking charges and no reference to terms and conditions being displayed inside the Land (which would warn drivers to look out for such further signs).

6.4  The wording on the sign is forbidding. The only discernable offer it makes is to permit holders only, it makes no offer to drivers of unauthorised vehicles.

6.5  The sign is not clear to enough to warn drivers parking is not permitted for unauthorised vehicles. The terms on the sign which suggest this is too small

6.6  If an offer is found to have been made by the signage, the offer was for parking in    return for a charge of £100. The amount displayed was too small.

6.7  Where terms on a sign are not seen as it was too small, the driver cannot have consented to an unknown contract, which in turn he/she cannot have breached – the contract is not capable of being established. In Vine v Waltham Forest [2000] EWCA Civ 106 the driver did not see the terms and consequently could not be deemed bound by them.

6.8  The Defendant relies on the following cases:

UKPC v Masterson (forbidding signage) Horizon Parking v Guilford (forbidding signage)

OB Services v Thurlow (forbidding wording)

Civil Enforcement Ltd v McCafferty (signage intended to act as a deterrent and not a genuine offer)

ParkingEyeLd v Lemon & Harris (unclear wording)

Beavis (signage must be clear and prominently displayed)

ParkingEye Ltd v Collins-Daniel (signs unclear, parties to contract unclear, no valid parking contract)

Vine v Waltham Forest LBC EWCA Civ 106 (terms unclear)

 

Coupon-mad

You don't need a number for every single sentence, group them together in more natural paragraphs

I advised you to remove this:

6.2  The keeper of the vehicle does have a permit therefore was authorised to park on this land but was not displayed.

Remove 6.8 as well, because a defence is not the place to list a load of county court cases that are not binding anyway!

Also, I don't think thus case was about what you are saying it was, so remove it:

. R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605

manutd99

Coupon-mad said:

You don't need a number for every single sentence, group them together in more natural paragraphs

I advised you to remove this:

6.2  The keeper of the vehicle does have a permit therefore was authorised to park on this land but was not displayed.

Remove 6.8 as well, because a defence is not the place to list a load of county court cases that are not binding anyway!

Also, I don't think thus case was about what you are saying it was, so remove it:

. R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605

6.2 - Oops I removed the wrong one.
Removed this instead by mistake. Il add below back if it seems ok

The reception for the building where the land is has a database of all authorised vehicles which should have been checked by ES Parking before issuing a ticket as this is their place of work as the reception issues the permit.

6.8 Removed and removed R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605

Other than that and less numbering (which il try) does everything else seems ok? At work on 9th June so will be submitting before going to sleep on the 8th.

Thanks once again

manutd99

One last question. Shall I put this one?  Otherwise all done

The reception for the building where the land is has a database of all authorised vehicles which should have been checked by ES Parking before issuing a ticket as this is their place of work as the reception issues the permit.