Claim from form country court for unpaid PCN charges

alexrider

Fruitcake said:

alexrider said:

Hello MSE,

I have recieved claim form from County Court Business centre ( Northampton) for unpaid parking charges,  I have parked my car in communal space in flats where Im a leaseholder on 18th Sept 2020 as I had to drop of material in flat for contracotrs to work, the Car park was shut due to the new grenfell guidelines and I didnt have any other place to park and drop the material to my flat, I had parked for 10 to 15 minutes near the the flats,  the car itself is not blocking anyone or its blocking way for fire exits, and Im the leaseholder of flat in the building, I have appealed with the same reason when I recieved the parking charges. but the appeal was rejected and passed onto law firm, where I have recieved few letters which I have not acted on. now they have sent me the Claim form,  I would like to know if I would be able to defend myself with the following reasons :

- I had to park there as I didnt have alretnative parking space available within premises due to the car park was shut down due to Grenfell legislation

- This is not causing any trouble or inconvinience to anyone

- The place I have parked is not the road which is not blocking or entrance or exit/fire exit

- This didnt cause any loss for any party by parking in that place for 10 to 15 minutes

- Im the leaseholder of the property and I have parked in the building premises to access,

Appreciate your feedback on this, and please suggest if I should dispute the claim with above points or accept to pay,

Thanks

Is the place where the car was parked part of the same residential area where you live, or was it someone else's land?
If it was where you live, what does your lease/AST say about parking, permits, parking scammers, PCNs, paying parking scammers, court claims? What it doesn't say about this is just as important.

What alternative parking and delivery/loading/unlading arrangements were made by whoever closed the car park? I believe there is case law that says you can't be denied an existing right to park and then penalised because you had to park elsewhere.

Loading and unloading is not parking as determined in the appeal court case of Jopson vs Homeguard. 

Were you consulted and asked to vote in a ballot of all residents and landlords in accordance with Section 37 of the Landlord and Tenant Act 1987? Your lease cannot be varied without this when parking scammers were introduced, or were they already infesting the site?

What happened when you complained to the landowner/managing agents?

Read and follow the guide to court written by bargepole that you will find in the second post of the sticky thread for NEWBIES.

Complain to your MP.

@fruitcake Can I ask what was the reson this was stroked off  `- This didnt cause any loss for any party by parking in that place for 10 to 15 minutes` , can I not mention this point in my defence? I somewhere read that if the company enforced parking have lost any money due to my parking then they can apply parking charges, may be thats applicable only to car parks, please advice me if I should incldue this point

Umkomaas

alexrider said:

Fruitcake said:

alexrider said:

Hello MSE,

I have recieved claim form from County Court Business centre ( Northampton) for unpaid parking charges,  I have parked my car in communal space in flats where Im a leaseholder on 18th Sept 2020 as I had to drop of material in flat for contracotrs to work, the Car park was shut due to the new grenfell guidelines and I didnt have any other place to park and drop the material to my flat, I had parked for 10 to 15 minutes near the the flats,  the car itself is not blocking anyone or its blocking way for fire exits, and Im the leaseholder of flat in the building, I have appealed with the same reason when I recieved the parking charges. but the appeal was rejected and passed onto law firm, where I have recieved few letters which I have not acted on. now they have sent me the Claim form,  I would like to know if I would be able to defend myself with the following reasons :

- I had to park there as I didnt have alretnative parking space available within premises due to the car park was shut down due to Grenfell legislation

- This is not causing any trouble or inconvinience to anyone

- The place I have parked is not the road which is not blocking or entrance or exit/fire exit

- This didnt cause any loss for any party by parking in that place for 10 to 15 minutes

- Im the leaseholder of the property and I have parked in the building premises to access,

Appreciate your feedback on this, and please suggest if I should dispute the claim with above points or accept to pay,

Thanks

Is the place where the car was parked part of the same residential area where you live, or was it someone else's land?
If it was where you live, what does your lease/AST say about parking, permits, parking scammers, PCNs, paying parking scammers, court claims? What it doesn't say about this is just as important.

What alternative parking and delivery/loading/unlading arrangements were made by whoever closed the car park? I believe there is case law that says you can't be denied an existing right to park and then penalised because you had to park elsewhere.

Loading and unloading is not parking as determined in the appeal court case of Jopson vs Homeguard. 

Were you consulted and asked to vote in a ballot of all residents and landlords in accordance with Section 37 of the Landlord and Tenant Act 1987? Your lease cannot be varied without this when parking scammers were introduced, or were they already infesting the site?

What happened when you complained to the landowner/managing agents?

Read and follow the guide to court written by bargepole that you will find in the second post of the sticky thread for NEWBIES.

Complain to your MP.

@fruitcake Can I ask what was the reson this was stroked off  `- This didnt cause any loss for any party by parking in that place for 10 to 15 minutes` , can I not mention this point in my defence? I somewhere read that if the company enforced parking have lost any money due to my parking then they can apply parking charges, may be thats applicable only to car parks, please advice me if I should incldue this point

The Supreme Court (ParkingEye v Beavis) decided against that in 2015. It has no prospect whatsoever of helping you. 

D_P_Dance

 it's exaggerated by a pretend 'debt recovery' add on.

Indeed, have you read this?

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

alexrider

Thanks everyone for valuable information provided, I have now submitted AOS, Thanks @Coupon-mad for the detailed guide which gives step by step information,

@D_P_Dance I have read the above info, but Im not sure if I should place my primary defence with higher charges or the penanlty itself if not valid for the reaons mentioned in the thread, please advise,

also I have attached the draft Defence, could experts help me to update this in leagal language and also to delete any unwanted paragrapha/lines from the document please,

I belive next step would be to send the defence docuemnt to CCBCAQ  (can I send ant time once I have to final document or do I need to follow any timelines for this ) and sending an email to claimants for SAR, Please advice me I have missed anything else,

Thanks and much appreciated for your help

Fruitcake

Please show us your amended paragraphs (usually 2 and 3) from the template defence in the sticky threads. We only want or need to see the parts you have changed.

It's a defence, not a defence document. The guide to court written by bargepole that you will find in the second post of the NEWBIES explains how, where, and when to send your defence, but let us check it first so you can fine tune it.

It would help us if you answered the questions I asked you previously.

alexrider

Apologies forgot to attach the copy,

2.It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied.  

3. Defendants car was parked in communal area for unloading material (with hazard lights on) as I had contractors working in the flat, I had no option but to leave the car in communal area as car park was closed by management company under guidance from Royal Berkshire Fire and Rescue service due to Grenfell fire safety regulations due to health and safety reasons.  And management company failed to provide alternative parking arrangements onsite for loading/unloading or for emergency usage. The car was parked for about 10 to 15 minutes to side where its not causing any inconvenience to residents or blocking any entrance/exit/fire exits. And being a leaseholder, I have the right to access the premises without causing any trouble to other residents since my usual parking space was shut.  And defendant left the car only for loading/loading with my car hazard lights turned on for about 10 to 15 minutes to leave the material on to 6th floor flat. I have appealed to Parking and property management with the same reasons and my appeal was rejected and passed on to law firm

Fruitcake

It all needs to be in the third person. Defendant, not I, every time.

3. Defendants car The defendant's car ...

Do not start a sentence with "and".

You haven't mentioned Jopson vs Homeguard about loading/unloading not being parking. This was an appeal court case and therefore persuasive on the lower courts.

alexrider

@Fruitcake Thanks for the inputs, I have updated the  draft with the above comments, I have also found out there was no voting/ nor discussions taken place with leaseholders before enforcing the private parking management company, and also  I havent found any clause related to parking management in my lease docuemnts,  please advise me if I have to add anything else or change any based on the above, and if any of the points in the document is not relevant to my case that should be removed, Thanks    ( Please note only point 3 is changed everything else is same as the template),

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. Defendant’s car was parked in communal area for unloading material (with hazard lights on) as contractors were carrying out works in defendant’s flat, defendant had no option but to leave the car in communal area as car park was closed by management company under guidance from Royal Berkshire Fire and Rescue service due to Grenfell fire safety regulations due to health and safety reasons.  The management company failed to provide alternative parking arrangements onsite for loading/unloading or for emergency usage. The car was parked for about 10 to 15 minutes to side where it’s not causing any inconvenience to residents or blocking any entrance/exit/fire exits. Defendant being leaseholder, the right to access the premises without causing any trouble to other residents since usual parking space was shut.  Defendant left the car only for loading/loading with car hazard lights turned on for about 10 to 15 minutes to leave the material on to 6th floor flat. Defendant appealed to Parking and property management with the same reasons and appeal was rejected and passed on to law firm. External parking management company to manage communal spaces of flats was introduced without ballot voting of leaseholders.

 

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.

Also believe next steps would be to send the defence to CCBCAQ@justice.gov.uk and request SAR from parking management company ?

Please let me know if I need to do anything else at this stage,

Thanks

Fruitcake

The SAR should always be one of the first things to do so you get the info back before you have to submit your defence.

Please post it again as it didn't work last time round.

The NEWBIES tells you how and where to submit your defence.

alexrider

Have recieved the SAR info, they sent the photos which they have taken and the PCN notice and appeal I have made,

Believe spoiler is working only on PC/MAC not on mobile,  let me try different formatting, ( Please note only point 3 is changed everything else is same as the template),

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. Defendant’s car was parked in communal area for unloading material (with hazard lights on) as contractors were carrying out works in defendant’s flat, defendant had no option but to leave the car in communal area as car park was closed by management company under guidance from Royal Berkshire Fire and Rescue service due to Grenfell fire safety regulations due to health and safety reasons.  The management company failed to provide alternative parking arrangements onsite for loading/unloading or for emergency usage. The car was parked for about 10 to 15 minutes to side where it’s not causing any inconvenience to residents or blocking any entrance/exit/fire exits. Defendant being leaseholder, the right to access the premises without causing any trouble to other residents since usual parking space was shut.  Defendant left the car only for loading/loading with car hazard lights turned on for about 10 to 15 minutes to leave the material on to 6th floor flat. Defendant appealed to Parking and property management with the same reasons and appeal was rejected and passed on to law firm. External parking management company to manage communal spaces of flats was introduced without ballot voting of leaseholders.

 

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. 

Please advise me if I have to add anything else or change any based on the above, and if any of the points in the document is not relevant to my case that should be removed, Thanks