Britannia parking Plymouth.

Coupon-mad

Yes, all of it.

Le_Kirk

If you put as part of your defence that there was frustration of contract due to a failing of the Claimant's PDT, you can expand upon it in your WS and in the defence you "put the claimant to strict proof that the PDT was functioning normally at the time of the parking event".

Fruitcake

Le_Kirk said:

If you put as part of your defence that there was frustration of contract due to a failing of the Claimant's PDT, you can expand upon it in your WS and in the defence you "put the claimant to strict proof that the PDT was functioning normally at the time of the parking event".

This is very difficult for the claimant to prove. Just because the machine was working before your car arrived, and was working a bit later as well, doesn't mean it was working when the driver tried to make a payment.
The judge will then decide on the balance of probabilities who is correct.
Is it the PPC whose income comes from a machine's failure, or is it the motorist who has stated under a statement of truth that it was not working at the time. The motorist is a witness to the event, often the only witness, whereas the PPC was not present, so the judge has to way up the veracity of a statement from an eye witness against an unregulated company referred to by UK MPs across all parties as, rogues, scammers, and bloodsuckers.

migmash

           Driver has now amended the wording in defence (section 3) Driver is now wondering, is there anything to be gained by waiting and emailing the defence on Monday the 28th (the cut off date) as opposed to tomorrow morning?

           The driver, ever the optimist, wonders if britannia may reply with a positive outcome.

Apologies for any "dithering" but this is the first time anything like this has ever happened, and driver is very worried about making a mistake (hence asking for help) .

IN THE COUNTY COURT

Claim No.: XXXXXXXXXX

Between

Britannia Parking Group. (Claimant) 

- and -  

Mr XXXX XXXXXX  (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.  The driver on the day was visiting the area when the engine management light came up on the cars dashboard. It was then decided to pull off the road in to the parking site mentioned in the letter, and see what could be done if anything, as the driver had been a member of the AA for some 40 Years, and wasn't sure if they could even get a van in the low parking to help anyway.

           The car was stood in the queue, hardly moving and overheating as the whole area was generally very busy. Once car was in building, it was just driven to one side, with steam coming from under the bonnet. No signal on mobile phone in there, so no AA call, but after about five minutes, all seemed better, and things cooled down enough to add water from the personal drinking containers in the car. This all took about 10, possibly 15 minutes maximum, and passers-by had helped push the car to one side, to a neutral area on the site, so hadn't even used a parking bay!

            Driver then slowly drove car back out to contact AA when signal working again and get repairs carried out, or Relay home. Upon leaving the car park, driver approached the PDT machine to pay, the driver asked 2 of the car park employees that appeared to be working on the machine at the entrance/exit "what seems to be wrong with the ticket machine if you have so many people queuing around you trying to pay"

and the reply was a somewhat mumbled "doesn't seem to be taking payments"   Driver then left the site, and proceeded to have car repaired.

          Driver has only just seen correspondence from B W Legal, and the invoice from Britannia, and the Claim Form, as recently sold personal home (21/5/21)  that had been rented out for the past 9 Months or so, as driver has been traveling in motor home since retirement.  All the usual utility bills and letters were taken care of by the tenant, and driver was certainly not expecting to return to threatening letters from debt recovery agencies, a parking charge notice and a Claim Form to be taken to Court. Not to mention drivers credit history being threatened, and put in to disrepute. 

               The driver feels that a “A frustration of contract” has occurred due to the PDT machine not functioning at the time of the incident. Unfortunately driver has not been successful in obtaining the functionality of the machine on that day, as when requested from Britannia, they chose not to disclose to driver, such information.

                                                                      

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.

Defendant’s signature:

Date: 18/06/2021

KeithP

You seem to have four unnumbered paragraphs between paragraphs 3 and 4.

The third and fourth of those unnumbered paragraphs mentions things that happened to the keeper, but you have written that they happened to the driver.

You need to decide whether you are defending this Claim as the keeper of the vehicle or as an admitted driver.

You do understand don't you that a keeper has more protections in law than a driver?

Those unnumbered paragraphs also appear to contain a fair amount of stuff that would be better placed in your Witness Statement.

Strongly suggest that you do delay filing your Defence just so that you can can get these things clear in your mind first. You get no bonus points for filing it early. 
Don't panic. Take your time to get it right - with the help of the people here.

Le_Kirk

Notwithstanding what @KeithP has stated about paragraph numbers and the fact that most/some of the content would be better in a witness statement, please correct this horrible grammar.

The car was stood standing in the queue, hardly moving and overheating as the whole area was generally very busy.

Coupon-mad

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https://forums.moneysavingexpert.com/discussion/comment/78411172/#Comment_78411172

Please, please come back every week to check and make sure your voice - AND YOUR FRIENDS’ AND RELATIVES’ VOICES TOO -  is/are not missed from this final opportunity to take part in the Government Consultation, coming very soon!

migmash

KeithP said:

You need to decide whether you are defending this Claim as the keeper of the vehicle or as an admitted driver.

You do understand don't you that a keeper has more protections in law than a driver?

Thanks for reply, KeithP, will tidy up 3rd and 4th paragraphs ( RE; driver/keeper mix), but I am now unsure as to whether to proceed as just the keeper, or just the driver. ( ie: i would have to write "the keeper drove away" etc)

I have seen other comments on here that state you should NOT claim you were the driver at the time of the incident ( hence i have used the term "driver" in my defence, as apposed to saying I or Myself).

You say that a keeper has more protections in law than a driver, I did not know this..... So should i rewrite my whole defence as the keeper and driver? Or just as the keeper of the vehicle.

I now realise that i should probably shorten my defence as i will need to mention things in my witness statement that i have already mentioned in my defence. Once i get my head around the above question, i can then rewrite and shorten my defence.

Many thanks again.

migmash

Le_Kirk said:

Notwithstanding what @KeithP has stated about paragraph numbers and the fact that most/some of the content would be better in a witness statement, please correct this horrible grammar.

The car was stood standing in the queue, hardly moving and overheating as the whole area was generally very busy.

Excellent observation Le_Kirk, will amend now ;-)

Fruitcake

If the keeper was not the driver, then say so.
If the keeper does not know who was driving, then say so.
If the NTK was not PoFA compliant AND the keeper was not the driver, then defend it as keeper.

If the keeper was the driver, bear in mind what you will say if the judge asks you if you were driving.

Sometimes a defence by a driver is better because they are also a witness and can state why the charge should not have been issued, signage was inadequate, boundary wasn't defined, nobody left site, they had bought a ticket, were displaying a permit, etcetera.