PCN advise before submitting claim

12b3

Ralph-y said:

SOME IDEAS ON DETERMINING WHO OWNS THE LAND

1. Google searches
2. If a retail park, check on any signage which lists the on-site outlets
3. Ask retailers on the site if there is a managing agent
4. Ask retailers on the site to whom do they pay rent
5. Contact the local authority and ask who pays the non-domestic/business rate for the car park (some councils have a spreadsheet on their website)
6. Contact the local Valuation Office and ask if they know. They often have a website which might provide the information
7. Contact The Land Registry and for around £3 they should be able to provide definitive detail
8. Give us the name of the car park, we may have seen other cases there.

Ralph

@ralph
The car park is called 

Cedar Lane car park

Rear of 1-14 the parade ,Frimley High Street ,Frimley Camberley, GU167HY

12b3

Guys any thoughts on the 1st NTK I shared. 

Umkomaas

I did a read up on this from this site's ANRP section  and it appears to me my letter doesn't identify the "Creditor". Am I right in thinking this is the landowner? 

'The Creditor' is identified and writ large under the photos of the car on the NtK. 

12b3 said:

Guys any thoughts on the 1st NTK I shared. 

While it's hidden in the small print about whether the car is on a hire basis, the PoFA para 9(2)(f) is there. The dates of NtK issue/given are within timescale, so the NtK is PoFA-compliant, not a lot of point in pursuing that route. 

12b3

I am drafting the defence today , what would be the best defence knowing all the above ? Any help highly appreciated.

KeithP

12b3 said:

I am drafting the defence today , what would be the best defence knowing all the above ? Any help highly appreciated.

Have you found the template Defence yet?
Just tailor it as instructed.

Le_Kirk

12b3 said:

I am drafting the defence today , what would be the best defence knowing all the above ? Any help highly appreciated.

You've almost written your defence with your first post: you just have to put it in legal/technical points such as defendant was not the driver, POFA failed by claimant therefore cannot chase keeper, medical emergency requiring driver (not you) to stop to assist pregnant passenger.  Avoid the temptation to tell the "story" save that for the witness statement (WS).  The defence points just open the door for the WS later in the process.

12b3

Please have a look at my draft below and provide any suggestions /comments , will submit it tommorow: 

IN THE COUNTY COURT

Claim No.: 

Between

(Civil Enforcement Ltd) 

(Claimant) 

- and -  

 ( )                        

 (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.  . This demand of payment first came to  attention through a letter in the post to the defendants.

4. The sequence of events as described to the Defendant are as follows , the driver was carrying a pregnant passenger who was feeling unwell on a return journey from a long road trip from Crownwall, this medical emergency required the driver to stop to assist the pregnant passenger. The occupants of the car stopped at the above location and were not aware that this was a paid for parking space, their concern was mainly for the passenger on board. They looked after the wellbeing of the sick  passenger who expressed a desire to come out of the vehicle and walk , they went out and let her walk and then went to a nearby shops got her some water and resumed their journey , at no point in time did the occupant observe any signs indicating that this was a paid for parking space. 

The defendant has been harassed  for a number of months by debt recovery letters, he at that time had been providing sole carer duties to an eldearly relative who was suffering from dementia.  

5. The Defendant was not driving the vehicle at the time of the alleged parking infringement, and therefore not liable for the parking charge. The operator has not offered any proof as to the name or address of the driver and has sent the PCN to the Registered Keeper of the vehicle, the Defendant.

 The only reference on the PCN as to who is liable to pay the charge can be found on the “tear off” Payment Slip at the bottom of the PCN. The wording, in a miniscule font, suggests that the operator knows that the driver is responsible for the alleged charge, but is unsure that the Registered Keeper to whom the PCN was sent was in fact the driver. Technically, the Defendant suggests, this does not actually form part of the Notice. If the recipient of the PCN does not intend to pay the charge, the payment slip is not necessarily going to be read.

 

The operator has failed to transfer liability for unpaid parking charges from the driver to the Registered Keeper of the vehicle, the regulations for which are laid out in the Protection of Freedoms Act (PoFA) 2012

 

6.  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.

7.       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.

8.       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.  

9.  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').

10.  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

11.       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.  

12.       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.

13.   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.  

14.   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.

15.       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.

16.   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 Defendant 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.

17.   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.

 

18.  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:

19.   (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.

20.   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:

KeithP

You have left your full name and your Claim Number clearly visible.
I suggest you edit your post.

As it was established last week that the NTK is POFA compliant, see @Umkomaas' post on 5 May at 12:31PM,  there is no point in arguing that they haven't identified the driver. Therefore your second sentence of paragraph 3 is superfluous.
Wit that in mind, you need to review the content of paragraph 5 and the two unnumbered paragraphs following it. All paragraphs need a number.

12b3

@KeithP i have made amendments , just to be clear I am doing a keeper not driver defence , will this suffice ? , What pofa wording I can add? Or can I not use that at all . A bit confused what I need to remove / add to para 5

KeithP

12b3 said:

@KeithP i have made amendments , just to be clear I am doing a keeper not driver defence , will this suffice ? , What pofa wording I can add? Or can I not use that at all . A bit confused what I need to remove / add to para 5

No point in mentioning POFA at all if the Claimant has correctly used POFA to transfer any driver's liability to the keeper.

If you were the driver then there is no point in trying to hide that fact.