Assistance reviewing my defence to submit next week

zigg123

To begin with I would like to say thanks for all the assistance the posts on this forum have provided when dealing with PCN's it is really appreciated.

Please could someone help me review my defence letter.Here's a brief background into my case:

I received a County Court Claim document early July. This was the first I knew about the claim.

Read on MSE forum and believed based on skim reading I only needed to submit the AOS last minute 14 days after the service date. Stupid me should be on day 5 after the Claim Letter date. In my defence work was taking too much of my time.

I submitted the acknowledgment of service only on the last day.

I then complained to the one store I though was where I would normally go and validate. Don't think it went through as no response. I turned out was not the right store anyway.

I disputed parking charge as keeper to the parking company. Requested info and stated I had not received anything on the claim to date.

I requested a SAR from the parking company.

I notified the legal team I have requested a SAR, confirmed my address and advised I am seeking debt advice asking for a delay.

I was told by legal cannot place account on hold as with court and advised to complete the AOS.

I advised legal I had submitted the AOS and advised I was awaiting info on the alleged offence

I received all the automated letters and pictures of signage etc from legal by email. First I had seen them.

I advised legal this was the first I had seen of these letters other than the claim form.I asked for their client to send proof of postage.

I was advised by legal that their client sends letters second class with no proof of postage.

I requested proof from legal that the validators and parking meters were all working at the time of the alleged offense.

I was advised by legal that due to data protection this could only be provided in court.

I investigated my own poor royal mail habits and found the plain white First Direct statement letters I had not bothered to open were not all First Direct Statements some were in fact the missing letters I had said I did not get. In my defense it was lock-down and I was bleaching most things did not trust letters from posties who might have covid.

I investigated driver bank statements found a contactless card payment for the day after the date alleged. Understand this is the posting date so is common to be a day afterwards.

I complained the store as they offer 2 free hours (10 minutes to leave pariking). I stated the PCN was either fabricated or a machine failure as driver validated car and we were clearly within time (PCN time in/out less than 30mins). I provided card / account details for Aldi to verify purchase. They will get back to me in 5 days just before I submit my defence.

I need to submit my defence early next week. Hopefully someone will have time to give me a few pointers. Thanks in advance for your time much appreciated. Only points 2 - point 15 are mine the rest are the latest standard letter of defence.

zigg123

IN THE COUNTY COURT

Claim No.: xxx

Between

Excel Parking Services Limited

(Claimant) 

- and -  

xxx

 (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 defendant denies being the driver of the vehicle xxxx at the time of the alleged offense.

4. The defendant was not aware of the alleged offense until receiving the County Court Claim letter (date of service z).

5. The defendant originally believed the automated letters had not been sent and corresponded with the claimant by email requesting the particulars of the claim and evidence.

6. The claimant confirmed that the letters were sent second class and proof of postage could not be provided. The claimant provided email copies of the letters only on xxxx. This was the first time the defendant was aware of the details of the claim.

7. The defendant investigated the missing letters and found them all unopened filed along with his First Direct statements. The envelopes were plain unmarked and looked exactly the same as the bank statement letters which the defendant does not open due to the service being available online.

8. The defendant identified the occupants of the vehicle from the emailed letter and discussed the day in question with them. 

9. The driver stated that on this occasion they parked at Newhall Walk and purchased items from Aldi Sutton Coldfield. The store offers validation of parking, and the driver believes they entered the registration correctly into the validation machine. After reviewing bank statements, the defendant verified that the driver made a purchase from Aldi. The payment shows as posted the next day on the 28/05/20, but the defendant understands that this is common for contactless payments.

10. The defendant requested proof from the claimant on 27/07/21 that the parking meter payment facilities and all the in-store validation facilities (multiple stores have this facility) were in fact working with proof of other transactions and validations that had occurred at the same date and time of the alleged offence.

11. The claimant responded and stated that this could not be provided until the court hearing due to data protection concerns.

12. The defendant contacted Aldi to complain on 28/7/21 as he believed the PCN has been issued incorrectly due to validation equipment failure. The Aldi purchase payment should be easy to verify with the supplied card details in the complaint between the time 15:08 and 15:28 on the 27/5/20.

13. Aldi offers 2 hours free parking by entering the registration number into the screen provided. The PCN pictures prove that the 2 hours have not been exceeded. The Aldi validator does not provide a receipt or even a confirmation screen, so it is impossible to prove your details have been inputted and accepted. It is therefore very feasible that an equipment fault, communication fault or logic validation fault occurred on the day of the claim. Aldi auto response to my complaint advises my query will be dealt with in 5 days.

14. The parking meters did not have working card payment facilities at the time of the visit (cash only) and they also do not provide receipts, so it is a problem to pay for parking as the ATM to get cash is quite a long distance away. The validation technique is therefore the easiest way if you do not have cash. Cash was also not encouraged at the time due to COVID concerns during enforced lockdown.

15. The driver stated that the signage was not readable or understandable. Writing was too small and not easy to distinguish.

16.   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.

17.       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.

18.       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.  

19.  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').

20  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

21.       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.  

22.       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.

23.   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.  

24.   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.

25..       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.

26.   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.

27.   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.

 

28.  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:

29.   (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.

30.   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: 30/7/21

 

KeithP

What is the Issue Date on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.


Leave out paragraph 7 from your Defence. It does you no favours.

And by the way, there is no letter 's' in the word Defence.

zigg123

A claim was issued against you on 02/07/2021

Your acknowledgment of service was submitted on 21/07/2021 at 13:26:37

zigg123

A claim was issued against me on 02/07/2021

Your acknowledgment of service was submitted on 21/07/2021 at 13:26:37

zigg123

Clarify date on form was the 02/07/2021.

I submitted on 21/7/21

KeithP

zigg123 said:

A claim was issued against you on 02/07/2021

Your acknowledgment of service was submitted on 21/07/2021 at 13:26:37

And the next line from your MCOL Claim History?
Something like...
Your acknowledgment of service was received on dd/mm/2021.

zigg123

A claim was issued against you on 02/07/2021

Your acknowledgment of service was submitted on 21/07/2021 at 13:26:37

Your acknowledgment of service was received on 21/07/2021 at 14:05:12

Claim History

Coupon-mad

Much of this is irrelevant to the defence and better saved for WS stage and at one point you've put 'my' instead of third person 'the Defendant's':

3.  The defendant denies being the driver of the vehicle xxxx at the time of the alleged offense parking event and due to some post being overlooked, was not aware of the matter until the court claim arrived.

4. The defendant was not aware of the alleged offense until receiving the County Court Claim letter (date of service z).

5. The defendant originally believed the automated letters had not been sent and corresponded with the claimant by email requesting the particulars of the claim and evidence.

6. The claimant confirmed that the letters were sent second class and proof of postage could not be provided. The claimant provided email copies of the letters only on xxxx. This was the first time the defendant was aware of the details of the claim.

7. The defendant investigated the missing letters and found them all unopened filed along with his First Direct statements. The envelopes were plain unmarked and looked exactly the same as the bank statement letters which the defendant does not open due to the service being available online.

8. The defendant identified the occupants of the vehicle from the emailed letter and discussed the day in question with them.

4. The driver stated that on this occasion they parked at Newhall Walk and purchased items from Aldi Sutton Coldfield. The store offers validation of parking, and the driver believes they entered the registration correctly into the validation machine. After reviewing bank statements, the defendant verified that the driver made a purchase from Aldi. The payment shows as posted the next day on the 28/05/20, but the defendant understands that this is common for contactless payments.

10. The defendant requested proof from the claimant on 27/07/21 that the parking meter payment facilities and all the in-store validation facilities (multiple stores have this facility) were in fact working with proof of other transactions and validations that had occurred at the same date and time of the alleged offence.

11. The claimant responded and stated that this could not be provided until the court hearing due to data protection concerns.

5. The defendant contacted Aldi to complain on 28/7/21 as he believed the PCN has been issued incorrectly due to validation equipment failure. The Aldi purchase payment should be easy to verify with the supplied card details in the complaint between the time 15:08 and 15:28 on the 27/5/20.  Aldi offers 2 hours free parking by entering the registration number into the screen provided. The PCN pictures prove that the 2 hours have not been exceeded. The Aldi validator keypad (supplied by this Claimant) does not provide a receipt or even a confirmation screen, so it is impossible to prove your details have been inputted and accepted. It is therefore very feasible that an equipment fault, communication/server fault or perhaps a minor 'keying error'  logic validation fault occurred on the day.  

6.  This latter possibility - a mere typo - is a known problem with such systems that this Claimant is required to identify before issuing a PCN, as part of the manual checks the British Parking Association Code of Practice requires.  PCNs should not be issued at all under such 'de minimis' circumstances and the Claimant is put to strict proof that the system was continually working at the material time and that this was not merely a minor VRM misread/mistype that their staff should have spotted before even obtaining the DVLA data of the Defendant.  of the claim. Aldi auto response to my complaint advises my query will be dealt with in 5 days.

14. The parking meters did not have working card payment facilities at the time of the visit (cash only) and they also do not provide receipts, so it is a problem to pay for parking as the ATM to get cash is quite a long distance away. The validation technique is therefore the easiest way if you do not have cash. Cash was also not encouraged at the time due to COVID concerns during enforced lockdown.

7. The driver also stated that the signage was not readable, inside or outside. or understandable. The writing was too small and not easy to distinguish and the keypad itself is positively hidden in a corner, not at the tills, failing the test of prominence of consumer terms.

8.   The Particulars of Claim set out an incoherent statement... (I assume the rest is the template and didn't read it).

KeithP

zigg123 said:

A claim was issued against you on 02/07/2021

Your acknowledgment of service was submitted on 21/07/2021 at 13:26:37

Your acknowledgment of service was received on 21/07/2021 at 14:05:12

That's good. The Acknowledgment of Service was in time - by one hour and fifty five minutes.

With a Claim Issue Date of 2nd July, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 4th August 2021 to file your Defence.

A few days yet. Plenty of time to produce a Defence.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

zigg123

Thanks so much for your prompt assistance it is much appreciated all the best.