Britannia parking Plymouth.

migmash

                Thanks Le_Kirk, that sounds fine. I have replaced driver with keeper as noticed by Redx, and numbered the paragraphs. I am considering using what i have already written (i will put on again later for hopefully last time) and doing a condensed version that i assume is read by a judge somewhere? or is read whilst i am on a three way conversation with B W Legal. All somewhat alien to me. Is the defence just an explanation of where parking incident occurred, more than why, and the defendant saying that it is not justified?

              And as Redx mentioned . .   .

  2 needs expanding to include driver , so 

Keeper and driver , or , keeper but not the driver , or keeper but driver not known

                If i am to elaborate on the sentence re: driver/keeper, and this is where i read conflicting opinions, hence my possible PM to a forum member, i am a man on holiday in my car, driving it as the owner . .  . do i just state this? some say yae, and some nae.  SHH H    H don't say you drove it!

                  Is a judge at some stage in the near future by the looks of things, going to plain and simply ask me "Could you please tell me, were you driving the car" 

        

Redx

The judge or the claimants legal rep are likely to ask that crucial question , where the defendant is under oath , lying is perjury , evasive answers will mean they both assume that the defendant was driving , on the balance of probabilities !! Ownership has zero relevance , nobody cares about ownership

Hence why I said expand on it now , saving the embarrassment later when asked in a hearing , because the case is about the truth , now , or later , now looks better

A defence sets the scene and adds legal arguments , in a concise way , one chance to get it right , only one

Future stages are , witness statement plus exhibits exchange , followed by the hearing , if it gets that far

migmash

             Just fathoming out what is relevant in this shortened defence i write up this evening. I would like to get it over with now, as hospital appts etc mess up tomorrow quite a bit, and DO NOT want to miss deadline :-(

            I am trying to include all salient points, but not run it on to be the next "Blockbuster Movie" script. My intention is to keep the original defence, after final alterations/amendments, and use as my WS (as mentioned by Redx, if it gets that far)

            Back to scribbling now . .   . 

KeithP

migmash said:

              My intention is to keep the original defence, after final alterations/amendments, and use as my WS (as mentioned by Redx, if it gets that far)

You Witness Statement will be an entirely different document - as explained in the second post of the NEWBIES thread.

Coupon-mad

In your case because the facts are specific to a breakdown I'd be openly admitting to driving.  No point hiding that in a case where at the hearing, you will want to talk about what happened.

Also you do not put the address of the Claimant at the top and surely you have the 'trading as' company stated wrongly.

migmash

Coupon-mad said:

In your case because the facts are specific to a breakdown I'd be openly admitting to driving.  No point hiding that in a case where at the hearing, you will want to talk about what happened.

Also you do not put the address of the Claimant at the top and surely you have the 'trading as' company stated wrongly.

         I had just gone from the template proffered, as below? 

        And the scanned claim form i put forward on page one, seems to show them as "T/A" 

BRITANNIA PARKING GROUP

LIMITED T/A BRITANNIA PARKING

7TH FLOOR . . . ETC    (Their capitals)

And i am assuming that you mean it is not necessary to add the claimants Address on the defence page? In which case, i shall remove it.

                                     Thanks again all.

THE 'FACTS' PARAGRAPHS ARE NOW IN #2 AND #3 under 'The facts as known to the Defendant'.
 (change to your own words!!).
Do not attach ANY evidence or anything else at this stage (the NEWBIES thread explains the stages)

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (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. 

^^^ CHANGE THE ABOVE IF NOT TRUE, OBVIOUSLY! ^^^ 

(Also, continue here in your words, by either also admitting to being the driver, or hirer/lessee, if you were.   Alternatively, deny being the driver in #2, but ONLY IF TRUE.  If you DON'T KNOW, say so).

 

3.  [REMOVE AND REPLACE THESE NOTES! EXPLAIN WHAT YOU KNOW IN YOUR OWN WORDS]  

If you are admitting to driving, you will be talking about what the Defendant saw or didn’t see, in terms of the signs, whether it was dark, whether the signs were obscured by a tree, really small, broken or not lit? etc. Or maybe the signs about inputting your VRM were not conspicuous, or maybe this was a fluttering ticket situation, or maybe the machine made an error in your VRM (never assume the driver made a typo, unless clearly the driver, say, input their other car VRM or something).

If you are only the registered keeper and were not driving, you will be saying when you first heard about this parking charge (by post, months later?) and maybe how harassed you felt by the bombardment of ‘debt recovery’ letters, and you might be taking the point that the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

If this is a residential car park where you live, you will be talking about your rights in your lease (as tenant or as leasehold owner), denying accepting any contract with this third party.

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:

 

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migmash

Well . .   .  have just found out that you are limited to 122 lines of your defence on the Gov site . .  . that got things busy quickly

KeithP

We don't need to see the whole of that Defence template again.

Have you made any changes at all to that draft Defence?
If so, at a quick scan I can't see them.

Le_Kirk

migmash said:

Well . .   .  have just found out that you are limited to 122 lines of your defence on the Gov site . .  . that got things busy quickly

Just as well you are not submitting it via MCOL then - I assume you are following the guidance from the defence template that says to send it be e-mail and gives the e-mail address.

1. Print your Defence.
   
2. Sign it and date it.
   
3. Scan the signed document back in and save it as a pdf.
   
4. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk 
5. Just put the claim number (check it very carefully) and the word Defence in the email title, and in the body of the email something like 'URGENT RE CLAIM XXXXXXXX - Please find my Defence attached.

migmash

            All of the below received something . .  . MCOL got what could be put on with my defence in 122 lines, and the template was not attached, as no room for it. I then proceeded to scan/sign/date, my defence, which had the paragraphs numbered as advised, and worded URGENT DEFENCE and claim number in the email header, and sent a copy to all below.

             All were acknowledged with an email "auto reply".  It became somewhat of a hectic day all in all, and this will be what it will be . .  .

                            Thanks again

cbcaq@justice.gov.uk

mcol@hmcts.gsi.gov.uk

cbc@justice.gov.uk