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

milkybk

Spoke to the court yesterday about which cost form it is I need to file with my Schedule of Costs, none of them knew! I told them the Judge mentioned one form which didn't seem correct but that she was very clear that a specific form must be filed with the costs or they won't be processed. Might just have to fill in one of every form I can find just to be safe haha!

Sorry for pestering you all but still hoping for feedback on my defence on the previous page. Would it help if I post my Witness Statement too? So they can be cross referenced? I didn't want to give you all too much to look at all at once.

No contact from Excel yet regarding mediation. 

Le_Kirk

That is a long defence about 15 paragraphs longer than the template.  It seems that some of it would be better in the witness statement as it refers to the narrative (story) of what happened on the day and subsequently.  A defence is a series of short, punchy legal and technical arguments that introduce your case and which you then back up and support with your witness statement.

milkybk

Le_Kirk said:

That is a long defence about 15 paragraphs longer than the template.  It seems that some of it would be better in the witness statement as it refers to the narrative (story) of what happened on the day and subsequently.  A defence is a series of short, punchy legal and technical arguments that introduce your case and which you then back up and support with your witness statement.

Okay thank you . Will edit now and repost this afternoon. Will also post the witness statement, so they can be compared. 

milkybk

Simplified version of defence, more similar to the template. Will move all other info into my Witness Statement. The main reason I had so much in the defence is that it's the first thing filed and therefore seen, so wanted it to be thorough but maybe went overboard. This new one doesn't mention signage etc, whereas the one in this - link - did and he won, hence including some.

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.

6.      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 to 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.

7.   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 NTK from the Claimant, no person was able to identify seeing a NTD affixed to the vehicle in question.

8.  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.

9.       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.

10.       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.  

11.  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

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

       (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.

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

Statement of Truth:

Jenni_D

6. .... Notice to Keeper (NTK) ... also repeated in 7 (but 7 is redundant anyway as the points being made are already made in 6).

8 onwards look like the template so I've not checked C-m's homework.  

milkybk

Jenni_D said:

6. .... Notice to Keeper (NTK) ... also repeated in 7 (but 7 is redundant anyway as the points being made are already made in 6).

8 onwards look like the template so I've not checked C-m's homework.  

Edited, thanks. Still feel a bit more could be in there, just from the other successful defence I linked but I suppose can go in witness statement.

1505grandad

Also, para 5 seems to be the same as para 1?

Coupon-mad

Costs Assessment form, as used by solicitors, is the one you want to adapt.

milkybk

1505grandad said:

Also, para 5 seems to be the same as para 1?

Thanks, missed that. Edited, will tidy up the numbers before sending it.

Coupon-mad said:

Costs Assessment form, as used by solicitors, is the one you want to adapt.

So an N260? Just from googling? Looks rather complicated hah but I'm sure it's not once you get into it

milkybk

Also - big deal day - CCJ officially erased from all credit files/reports  

Buzzing haha I knew it was going obviously but great to see it gone. The registry trust just emailed confirming for me.