Claim from form country court for unpaid PCN charges

alexrider

@Fruitcake Thanks a lot for taking time to explain, wasnt thinking they were relevant so haven't included, but now I have included all the points you and other members suggested,

Could I kindly ask you to review one last time before submitting the defence please? ( please note only point 3 to 6 are newly added from 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. The defendant’s car was parked in a communal area for unloading material (with hazard lights on) as contractors were carrying out works in the defendant’s flat. The defendant had no option but to leave the car in the communal area as the usual 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 defendant’s 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. The Defendant being leaseholder, the right to access the premises without causing any trouble to other residents since the usual parking space was shut.  The 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. The Defendant contacted the management company over phone and was told that they cannot intervene as its dealt by external parking management company and to be discussed with parking management company. The defendant then appealed to Parking and property management with the same reasons and appeal was rejected and passed on to law firm.

 

4. The car park cannot be run as if it is privately owned because it is actually owned by a TMA. Councils are not permitted to operate car parks as if they are privately own, irrespective of whether they employed the unregulated parking company themselves, or employed an agent who in turn employed the unregulated parking company The car park being not relevant land because it is owned by the council who are a Traffic Management Authority (TMA), therefore the PoFA does not apply, the unregulated parking company is not permitted to obtain keeper data from the DVLA.

 

 

5. External parking management company to manage communal spaces of flats was introduced by management company without consulting leaseholders. The landowners/management company failed to ballot all leaseholders in accordance with Section 37 of the Landlord and Tenant Act 1987. A resident's lease cannot be varied without a ballot in favour as defined by the Act.

 

6.  As per (Laura) Jopson vs Homeguard (Services Ltd) case number 9GF0A9E where the judge stated that loading and unloading is not parking

 

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:

Have also raised the the above discussed points with managing agents and told them they are liable and asked them to provide the contact details to attend the court to explain to judge,  Raised the same issue with councillors and DVLA for obtaining the data unlawfully,

Could you kindly please let me know if any other details will be relevant to include in the defence that woud help,

Much appreaciated for your time,

Fruitcake

A few suggestions. 

5. An unregulated private parking External parking management company to manage communal spaces of flats was introduced by the residential management company to manage communal spaces of flats without consulting all the landlords and leaseholders of the property. The landowners and /  management company failed to ballot all leaseholders in accordance with Section 37 of the Landlord and Tenant Act 1987. A resident's lease cannot be varied without a ballot in favour as defined by the Act. Such a variation of a lease is a derogation of grant. A third party cannot take away or vary a leaseholder's existing right to park.


6.  As per In the persuasive appeal court case of (Laura) Jopson vs Homeguard (Services Ltd) case number 9GF0A9E where the judge stated in paragraph 19 of that case that that loading and unloading is not parking.
The defendant's case is no different. The defendant's vehicle was briefly stopped whilst items were being unloaded and carried into the defendant's property.

alexrider

Thanks @Fruitcake have updated the defence with above, that made it more professional docuemnt

I have sent the email to CCBCAQ@Justice.gov.uk with defence in pdf format, recieved  AUTO RESPONSE  CCBC AQ Acknowledgment,

 just wanted to clarify the difference between CCBC and CCBCAQ? ( in the auto reponse email it says `If you should have any queries please forward to CCBC@JUSTICE.GOV.UK` )

My next steps would be to prepare 'evidence' and 'Directions Questionnaire' and wait until I hear from cliamant to send the DQ, then send the DQ to CCBC and claimant (just wondering is there any deadlines for this?)

List of Evidence : 

- (Laura) Jopson vs Homeguard (Services Ltd) case judgement

- email exchange with MP, councillors

- email exchaneg from management company ( confirming they havent balloted)

- complaint to DVLA

Just wondering if anything else I should be including part of evidence ?

Thanks in advance

KeithP

Remember also that you will be writing a Witness Statement in due course.

Fruitcake

You do not include any evidence with the defence, just references etcetera such as Acts of Parliament and court cases like Jopson, including the case number.

alexrider

Hello kind people,

I have now recieved  `notice of proposed allocation to the small claims track' letter regarding  and Im filling out N180 form and following the guidance provided in newbies thread , However I have the following questions on what to fill out for the following :

• In the ( before claim number at the right hand side top corner of N180 form)
• To be completed by, or on behalf of (who is [1st][2nd][3rd][ ][Claimant][Defendant][Part 20 claimant] in this claim)

Apologies if this was already discussed, but couldnt find it when I looked up in few threads,

have also recieved the intimidating letter from the solicitors firm, as suggested by the experts, just ignoring and proceeding to next stage

Thanks and much appreciated for your help

KeithP

alexrider said:

Hello kind people,

I have now recieved  `notice of proposed allocation to the small claims track' letter regarding  and Im filling out N180 form and following the guidance provided in newbies thread , However I have the following questions on what to fill out for the following :

• In the ( before claim number at the right hand side top corner of N180 form)
• To be completed by, or on behalf of (who is [1st][2nd][3rd][ ][Claimant][Defendant][Part 20 claimant] in this claim)

Apologies if this was already discussed, but couldnt find it when I looked up in few threads,

The first question is easily answered. Look at the similar box on your County Court Claim Form.

The second question is equally easy.
Are you completing the form on behalf of anyone?
Are you 1st Claimant?
Are you 2nd Claimant?
Are you 3rd Claimant?
Indeed, are you any sort of Claimant?
What are you left with?

alexrider

Hello Experts out there,

Thanks for all your help, I have recieved the court hearing date which is on 18th of March 2022, which will be online hearing. and I'm in the process of preparing the witness statements to be submitted to court before hand, 

In the mean time I have recived the following letter from Claimansts Solicitors, which I believe is just intimidating letter, but just want to run it past the experts and find out if I shoudl just ignore or if I need to change any course of action,

Thanks in advance 

Coupon-mad

What intimidating twaddle, trying to get people to withdraw their defence because BW Legal (but no Judge ever) thinks it is a 'false statement'.

Jenni_D

Coupon-mad said:

What intimidating twaddle, trying to get people to withdraw their defence because BW Legal (but no Judge ever) thinks it is a 'false statement'.

🤣

BWL yet again being the Pot and calling the Kettle black 🙄