Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

D_P_Dance

Many judges are now awarding interest at a very low percenntage.  

milkybk

Coupon-mad said:

I'd just repeat what I said here, earlier on your thread. it's an important POFA liability point:

https://forums.moneysavingexpert.com/discussion/comment/78631032#Comment_78631032

and the most fundamental point about any private parking case: were the signs prominent and clear?  If not, whether the defendant was driving or not, the claim is dead unless the (rare) Judge relies on hundred years old ticket cases because he hasn't grasped the CRA 2015.  There was one such Judge...luckily most understand the need for terms to be prominent.

It's perfectly possible to run alternative arguments (provided that is pleaded). If so, it's as simple as it is on all cases:

1. C can pursue D as keeper only if the strict requirements of PoFA are met. That is because there is no presumption of driver (and similarly that even for speeding offences and the like there is a request to name the driver first) 

2. If C needs to prove D as driver, they can be put to proof. There is no presumption and C may struggle with that evidence. However, the judge may be invited by C to draw a conclusion on balance of probabilities. 

3. If the court makes a finding of fact as to the driver, it is then for C to prove that a contract was formed via the signage in place. That can be rebutted - if D was never there, that would usually involve Google time and/or a site visit and some interpretation as to what a reasonable driver would have done.

One should be careful not to mislead the court at any stage. 

You may have visited the car park at a later date for research purposes once you received the PCN!  This does not make you the driver on the day.

Thank you. I'm glad you all I agree. I was taken a back by the PePiPo responses tbh, it seemed like they were almost for the claimant, rather than the defendant! Even after I mentioned a brief overview of successful set aside etc.

I think with the other thread from here, the info you have all given me and the defence I already have drafted, I should be able to get everything ready within a few days to post on here for critique. It's going to be long though, sorry!

Question: As I mentioned, there's an identical case against Excel at the same car park at night (so same circumstances) on this forum, where the judge threw the case out for reasons I mentioned in earlier posts. Could I include that as evidence/exhibits/examples too?

D_P_Dance said:

Many judges are now awarding interest at a very low percentage.  

Cool, thanks for the info. I'm pretty sure Excel will try and settle outside of court or drop the PCN or whatever. But want to be prepared to maximise the outcome regardless for myself! They deserve nothing less.

Coupon-mad

Yes you could mention the other case thrown out but it won't be evidence because posts on a forum are hearsay.  You could pm the other poster and ask fir a copy of their Order but it won't be a transcript of the hearing.

Even if it was, one county court decision is not binding on another.

milkybk

Coupon-mad said:

Yes you could mention the other case thrown out nut it won't be evidence because posts on a forum are hearsay.  You could pm the other poster and ask fir a copy of their Order but it won't be a transcript of the hearing.

Even if it was, one county court decision is not binding on another.

Ok, well I'll maybe mention it if I get more details.

I've backed out of the PePiPo forum and asked for my thread to be deleted, maybe I'm unfortunate but they seem quite abrasive and dismissive. Rather than simply answering my question (any old photos/info from specific car park) they want on the attack about how it doesn't matter if they can't prove I'm the driver, they'll get me for NTK etc... Quite aggressive, almost like a 2nd court grilling haha! Much prefer it here.

milkybk

This was their last response, I'm not going to reply and have asked for the thread to be deleted (if you right click and open the image in a new tab you can read it full size):



All I wanted was some info/photos from previous years if people had them haha! Shouldn't have shared the basics of the case in my OP but thought it might give them context as why I was asking for said info.

milkybk

Hi all, so as promised I have drafted my defence, with some edits. I have also created a draft Witness Statement but I'm just finishing it off. I will travel to Sheffield this weekend to take photos and videos in the dark, so these will be blank references right now. I will post the defence in two separate ones and the witness statement in another when ready.

Please feel free to critique and have input as always. Thanks in advance.

FYI - No letter from court received yet. Spoke to court and they said they're a few days behind, so will be within the next 5 days. They also confirmed that the changes requested have been noted and if they're missed then when I receive the Set Aside order from the Judge, I can request an amendment.

____________________________________________

IN THE MILTON KEYNES COUNTY COURT

Claim No. XXXX

BETWEEN:

Excel Parking Services Limited

Claimant

– and –

Defendant

XXX

__________________________________________________________

DRAFT DEFENCE OF XXXX

__________________________________________________________

 

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. The Particulars of Claim state that the claim is, “in respect of a Charge Notice (CN) for a contravention on XXXXX at Broomhill Roof Top Pay & Display Car Park”. It is not stated whether the Claimant is claiming against the driver or the registered keeper or what the contravention is. These assertions indicate that the Claimant has failed to identify a Cause of Action. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

3. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

4. The alleged contravention took place at night, over 55 months ago. Upon investigation, none of the signs containing relevant parking terms, nor the Pay and Display Machines in the car park were adequately illuminated or in a position to be seen by the driver. The terms are displayed in a font which is too small and too high up to be read from a passing vehicle and are in such a position that anyone attempting to read the tiny font would be unable to do so easily. Repeater signs are high up and poorly illuminated. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

5. Furthermore, it is also denied that the signage is adequate to bring the charge to the notice of drivers (POFA 2012, Schedule 4, at Paragraph 2(3)(b)(ii)) and so keeper liability cannot be claimed.

6. POFA 2012, Schedule 4, at Paragraph 9(2)(c) states that the Notice To Keeper (NTK) must, “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose”. The NTK received by the owner states the contravention reason as, “Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site the maximum period allowed at this site is minutes”. Note that a maximum allowed time has been implied but then not been stated. Therefore, the circumstances requiring payment have not been described. Since the NTK is not POFA 2012 compliant, keeper liability cannot be claimed.

7. The allegation appears to be based on images by their ANPR camera at the entrance and exit to the site. This is merely an image of the vehicle in transit, entering and leaving the car park in question and is not evidence of the registered keeper “parking without payment” as specified in the notice to keeper. The Defendant asked for a partially redacted copy of the pay and display machine records for the time of the alleged contravention in a Subject Access Request in the pre-action stage however the Claimant has ignored this request.

8.   It is admitted that the Defendant was the registered keeper of the vehicle. However, over 55 months have passed since the alleged event and the Defendant cannot be sure who was driving on an unremarkable day so long ago, therefore the Defendant is unable to confirm or deny who was driving and the claimant is put to strict proof. Furthermore, upon receiving the aforementioned Notice of Keeper (NTK) from the Claimant, no person, who might have been the driver, was able to confirm seeing a Notice to Driver (NTD) affixed to the vehicle in question.

9.   The Defendant is unable to admit or deny that he was the driver and therefore requires the claimant to prove so. Furthermore upon receiving the aforementioned Notice of Keeper (NTK) from the Claimant, no person was able to identify seeing a Notice to Driver (NTD) affixed to the vehicle in question.

10.   The Claimant repeatedly refused to provide the Defendant with photographs etc when requested during the original appeal in 2017, therefore the Defendant cannot be sure of the full facts. When the Defendant discovered they had a surprise CCJ filed against themselves, they sent the Claimant's Data Protection Officer an official Subject Access Request on 04/072021. The Claimant also ignored a follow up email sent on 07/07/2021 from the Defendant, chasing the SAR. By law, the Claimant should have responded without delay and within one month of receipt of the request. 

11.  As the registered keeper, the first the Defendant heard about this alleged parking charge was via post when they received the aforementioned NTK. The only photos provided at the time on the alleged PCN were two blurry ones, where the car's registration plate could barely be made out. The claimant has demonstrated no evidence of non-payment of a parking ticket, nor failure to display, nor any breach of contract. In the Defendant’s appeal in 2017, and subsequent Subject Access request in 2021, the Claimant was asked to provide a PDT machine record from the day of the alleged parking charge, of all payments made. They did not supply this.

12.   On 16/09/2021 the Defendant received a SAR file from the Claimant, over 2 months after the SAR was requested. The Claimant stated they had never received the SAR from the Defendant. However the Defendant can provide date and time stamped emails proving that the request was sent. It contained no new information that pertains to the Defendant's defence. 
 

13.   This was a simple request and therefore there are no mitigating circumstances to allow for an extension, should one have been required. Therefore by law, the Claimant should have responded without delay and within one month of receipt of the request. Therefore the Claimant refused the Defendant's legal right of access, as they did in 2017 during the Defendant's original appeal.

14.   The photos the Claimant has provided in their witness statement are of signage in daylight on completely different dates, potentially over 4 years since the alleged offence.  As can be seen on the PCN car photos, it was extremely dark when the alleged event took place. Therefore these signs will not have been as clear or as easy to spot, if they were even present in 2017.

15.   In the overdue SAR received 16/09/2021, there are two photos of the car’s registration plate, which can clearly be made out, unlike those on the original NTK in 2017. These clearer images were not provided at the time of the 2017 appeal, neither was any of the requested information. As has already been mentioned, the Defendant admits they were the registered keeper of the vehicle in these new photos. However, as mentioned in Point 2 of this defence, the Defendant is therefore still unable to confirm or deny who was driving and the claimant is put to strict proof.

16.   The aerial view they Claimant has created shows just one PDT machine (no proof it was working) and a couple of 'entrance signs' and a single ANPR sign but zero 'information signs', none whatsoever. Therefore this cannot be considered evidence of an agreed contract by the driver.

17.   The Defendant has been hounded and harassed by a bombardment of ‘debt recovery’ letters. It should also be pointed out 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

18.  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.

19.   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.

20.   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.  

21.   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').

22.   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

23.   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.  

24.   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.

25.   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.  

26.   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.

27.   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.

milkybk

28.   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.

29. In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the Claim by adding purported Debt Collection Costs of £60, for which no calculation or explanation is given, which have not actually been incurred by the Claimant since no debt has been collected. This appears to be an attempt at double recovery.

30. Furthermore, POFA 2012, Schedule 4, at Paragraph 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100.

31. The Particulars of Claim state that the Claimant is seeking recovery of interest. The date from which this is claimed, the total amount of interest claimed to the date of calculation and the daily rate at which interest accrues after that date are not specified. As such, the claim fails to comply with Civil Procedure Rule 16.4.

32.   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.

33.   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:

34.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

       (b) The Defendant therefore asks the Court to consider his Schedule of Costs.

       (c) 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.

35. The defendant also notes, in a recent case in 2019, against the same Claimant in the same car park, a Judge ruled that the signage was inadequate and poorly lit and did not form a binding contract. The Judge dismissed all of Excel’s claims against the Defendant. The Claimant has since made no improvements or changes to aforementioned signage or lighting, as my evidence will show.

36.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth:

I, XXXX, the Defendant, believe that the facts stated in this draft 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.

Signed: __XXXX__

Coupon-mad

You seem to have removed the template #2 which you shouldn't do. You need to admit or deny being the registered keeper, and say whether or not you were driving (if you are admitting that) or if it is far too long ago to have any idea because more than one family member was insured on that vehicle and the location is unremarkable.

milkybk

Coupon-mad said:

You seem to have removed the template #2 which you shouldn't do. You need to admit or deny being the registered keeper, and say whether or not you were driving (if you are admitting that) or if it is far too long ago to have any idea because more than one family member was insured on that vehicle and the location is unremarkable.

Woops, will add back in. It's because I've tried to combine some of the good points from the other case on here (same car park same company) that the defendant won, along with my original draft defence I have posted previously. To be clear, I am sticking with my original statement that we all agreed:

Admit to being registered keeper.
Do not admit or deny liability as driver due to length of time passed etc, therefore onus is on the Claimant to prove so.

It is admitted that the Defendant was the registered keeper of the vehicle. However, over 55 months have passed since the alleged event and the Defendant cannot be sure who was driving on an unremarkable day so long ago, therefore the Defendant is unable to confirm or deny who was driving and the claimant is put to strict proof. Furthermore, upon receiving the aforementioned Notice of Keeper (NTK) from the Claimant, no person, who might have been the driver, was able to confirm seeing a Notice to Driver (NTD) affixed to the vehicle in question. 

The Defendant is unable to admit or deny that he was the driver and therefore requires the claimant to prove so. Furthermore upon receiving the aforementioned Notice of Keeper (NTK) from the Claimant, no person was able to identify seeing a Notice to Driver (NTD) affixed to the vehicle in question. 

milkybk

Coupon-mad said:

You seem to have removed the template #2 which you shouldn't do. You need to admit or deny being the registered keeper, and say whether or not you were driving (if you are admitting that) or if it is far too long ago to have any idea because more than one family member was insured on that vehicle and the location is unremarkable.

Do you think my original, simpler defence is better? See below:

IN THE MILTON KEYNES COUNTY COURT

Claim No. XXX

BETWEEN:

Excel Parking Services Limited

Claimant

– and –

Defendant

XXX

__________________________________________________________

DRAFT DEFENCE OF XXX

_________________________________________________________

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. However, over 55 months have passed since the alleged event and the Defendant cannot be sure who was driving on an unremarkable day so long ago, therefore the Defendant is unable to confirm or deny who was driving and the claimant is put to strict proof. Furthermore, upon receiving the aforementioned Notice of Keeper (NTK) from the Claimant, no person, who might have been the driver was able to confirm seeing a Notice to Driver (NTD) affixed to the vehicle in question.

3.   The Defendant is unable to admit or deny that he was the driver and therefore requires the claimant to prove so. Furthermore upon receiving the aforementioned Notice of Keeper (NTK) from the Claimant, no person was able to identify seeing a Notice to Driver (NTD) affixed to the vehicle in question.

4.   The Claimant repeatedly refused to provide the Defendant with photographs etc when requested during the original appeal in 2017, therefore the Defendant cannot be sure of the full facts. When the Defendant discovered they had a surprise CCJ filed against themselves, they sent the Claimant's Data Protection Officer an official Subject Access Request on 04/072021. The Claimant also ignored a follow up email sent on 07/07/2021 from the Defendant, chasing the SAR. By law, the Claimant should have responded without delay and within one month of receipt of the request. 

5.  As the registered keeper, the first the Defendant heard about this alleged parking charge was via post when they received the aforementioned NTK. The only photos provided at the time on the alleged PCN were two blurry ones, where the car's registration plate could barely be made out. The claimant has demonstrated no evidence of non-payment of a parking ticket, nor failure to display, nor any breach of contract. In the Defendant’s appeal in 2017, and subsequent Subject Access request in 2021, the Claimant was asked to provide a PDT machine record from the day of the alleged parking charge, of all payments made. They did not supply this.

6.   On 16/09/2021 the Defendant received a SAR file from the Claimant, over 2 months after the SAR was requested. The Claimant stated they had never received the SAR from the Defendant. However the Defendant can provide date and time stamped emails proving that the request was sent. It contained no new information that pertains to the Defendant's defence.  

7.   This was a simple request and therefore there are no mitigating circumstances to allow for an extension, should one have been required. Therefore by law, the Claimant should have responded without delay and within one month of receipt of the request. Therefore the Claimant refused the Defendant's legal right of access, as they did in 2017 during the Defendant's original appeal.

8.   Furthermore, a file sent from the Claimant in the SAR documents was for a “Notice of change of legal representation”. The Claimant ticked box C of this form, declaring they had served the Defendant of the claim with notice of this change, which they did not. They signed this document, therefore declaring it as truth. I believe that this, along with my Witness Statement and Supplementary Witness, show  that this is further proof of a pattern of deceitful and illegal behaviour from the Claimant. The Claimant has continuously attempted to hamper and mislead the Defendant and therefore subsequently the Court. Therefore their actions could be considered contempt of court. 

9.   The photos the Claimant has provided in their witness statement are of signage in daylight on completely different dates, potentially over 4 years since the alleged offence.  As can be seen on the PCN car photos, it was extremely dark when the alleged event took place. Therefore these signs will not have been as clear or as easy to spot, if they were even present in 2017.

10.   In the overdue SAR received 16/09/2021, there are two photos of the car’s registration plate, which can clearly be made out, unlike those on the original NTK in 2017. These clearer images were not provided at the time of the 2017 appeal, neither was any of the requested information. As has already been mentioned, the Defendant admits they were the registered keeper of the vehicle in these new photos. However, as mentioned in Point 2 of this defence, the Defendant is therefore still unable to confirm or deny who was driving and the claimant is put to strict proof.

11.   The aerial view they Claimant has created shows just one PDT machine (no proof it was working) and a couple of 'entrance signs' and a single ANPR sign but zero 'information signs', none whatsoever. Therefore this cannot be considered evidence of an agreed contract by the driver.

12.   The Defendant has been hounded and harassed by a bombardment of ‘debt recovery’ letters. It should also be pointed out 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

13.  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.

14.   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.

15.   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.  

16.   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').

17.   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

18.   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.  

19.   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.

20.   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.  

21.   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.

22.   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.

23.   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.

24.   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.

25.   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:

26.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

       (b) The Defendant therefore asks the Court to consider his Schedule of Costs.

       (c) 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.

27.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth:

I, XXXX, the Defendant, believe that the facts stated in this draft 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.

Signed: ___XXXX__