My Defence for a court claim I received

Donnaindebt

Hi everyone,

I am so grateful for the advice and guidance given regarding these Parking fine claims, I had the shock of my life when a claim for £550 arrived on my doorstep for parking somewhere to go to Matalan 5 years ago!

I have posted my defence below after following the draft response and adding the very small amount of information I have, is this correct?

thanks again, 

(Removed by Forum Team).

IN THE COUNTY COURT 

Claim No.: (Removed by Forum Team) 

Between 

Highview Parking Limited  

(Claimant)  

- and -   

                         (Removed by Forum Team)                         

 (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 and the driver of the vehicle on both 05/07/2016 and 22/10/2016 

 

3.       The Defendant visited the Broad Centre on few occasions, these events occurred just under 5 years ago so the Defendants recollection is vague however the Defendant has recalled that the car park was free to those attending the shops at the Broad Centre and the Defendant had attended the area to use the adjoining shops. The Defendant moved away from the area on the 29th October 2016 and has received no correspondence relating to this matter until the claim arrived 27th April 2021 

 

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 money claim 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:

KeithP

Hello and welcome.

What is the Issue Date on your County Court Claim Form?

If you have filed an Acknowledgment of Service, please tell us the date that you did that. Your MCOL Claim History will have the definitive answer to that question.

Disappointing to see that you have posted your full name and your Claim Number.
Do you have no privacy concerns? 

Does the Claimant already know who was driving?
The the keeper has more protection then the driver in these matters, and as Highview do not rely on POFA to transfer the driver's liability to the keeper, the keeper would be a lot safer if the driver's identity remains unknown.

Unfortunately as a new forum user you will be unable to edit your post above.
I have emailed the MSE Forum Team asking them to remove your name and the claim number from your post.

D_P_Dance

Have you complained to your MP?

Fruitcake

I'm no expert, but assuming you have only amended paras 2 and 3 of the defence template from the sticky threads, it looks okay to me.

However, I don't think Highview scamvoices were PoFA compliant in 2016? Are you absolutely sure you know the identity of the driver from an event that occurred five years ago. You say the defendants recollection of the two visits is vague, yet you also say you clearly recollect who was driving.

Unless something very memorable happened that day, I wouldn't have a clue who had been driving on a shopping trip that long ago.

The keeper has protections in law that the driver does not.
Obviously you must tell the truth if asked by a judge, but can you say with absolute certainty that you know who was driving, and want to throw them under the tram?
If there is any doubt, then you should amend para 2 accordingly.

Have a look at Google Streetview (GSV) to see if it shows any photos of the site  from or either side of the dates of the alleged event.

It's not too late for a landowner cancellation, or one of the retail managers may be able to get it cancelled, so that is your Plan A, but without missing your defence filing deadline.

Please tell us where the alleged events took place as it may have cropped up here before. Is it Sutton-in-Ashfield/Nottingham? 

Le_Kirk

2.       It is admitted that the Defendant was the registered keeper and the driver of the vehicle in question of the vehicle on both 05/07/2016 and 22/10/2016 but liability is denied.
3.       The Defendant has visited the Broad Centre on a few occasions; these events occurred just under on unremarkable days 5 years ago, so the Defendants recollection is vague not fresh. however the The Defendant has recalled recalls that the car park was free to those attending the shops at the Broad Centre and the Defendant had attended the area to use the adjoining shops. The Defendant [moved away from the area on the 29th October 2016] and has received no correspondence relating to this matter until the claim form arrived on 27th April 2021 

Suggestions above.  It is optional whether to remove or include the phrase in [ ] as it is likely that you did not update your V5C with DVLA until sometime after you moved, which is why you did not receive any correspondence.

Donnaindebt

Hi folks,
Thanks for all your responses, Thanks to KeithP for saving me from myself, clearly a bit naive about these things but learning everyday.

The issue date on the Claim form is 27/04/2021.
I completed the AOS 09/05/2021and it was received 10/05/2021 (a bit last minute I know).

Fruitcake: Yes it is Sutton in Ashfield, Nottinghamshire.

Le_Kirk: I have used your amendments to improve my defence.

Thanks again for taking the time to help me with this. 

KeithP

Donnaindebt said:

The issue date on the Claim form is 27/04/2021.
I completed the AOS 09/05/2021and it was received 10/05/2021.

With a Claim Issue Date of 27th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 1st June 2021 to file your Defence.

That's three weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving 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.

Coupon-mad

Personally, I'd be defending as keeper and not trying to guess or suggest you may have been driving 5 years ago on more than one day.  Most families have more than one driver and this has all been discussed to death on all the shedloads of other Highview threads this past week or two.  There are far more robust defence point #3 for you to copy from, about the untruth in the Particulars of Claim (POC) and the fact Highview don't use the POFA.

Also, £550 must be three parking charges?  What do the POC say on the left of the claim form about the incidents?

Donnaindebt

Coupon-mad said:

Personally, I'd be defending as keeper and not trying to guess or suggest you may have been driving 5 years ago on more than one day.  Most families have more than one driver and this has all been discussed to death on all the shedloads of other Highview threads this past week or two.  There are far more robust defence point #3 for you to copy from, about the untruth in the Particulars of Claim (POC) and the fact Highview don't use the POFA.

Also, £550 must be three parking charges?  What do the POC say on the left of the claim form about the incidents?

Thanks for your advice Coupon-mad, it is very much inline with what others have said so I have deleted the part about me being the driver.
The claim is for 2 PCN's, they are claiming £340 for PCN's plus damages. Interest at a rate of 8% per annum pursuant to s.69 of the county courts Act 1984 from the date hereof at a daily rate 0f 0.07 until judgement or sooner payment. Costs and Court fees.
Total amount claimed £466.93
Court fee £35
Legal representative's costs £50
Making a Grand total of £551.93 

Coupon-mad

Absolute chancers.

See the threads by @Redman2186 and @ld123 and crack on with copying & adapting the easy but robust defence.  Already written!