DCB/NEXUS Parking Charge @ Strensham Services Small Claims intiial letter/defence

peterkgb1

Hi from a visit to Strensham services in July 2018 we got a PCN from Nexus, we ignored these over 3 years (more latterly via DCB Legal) and this week received a small Claims Notice of Claim (stamped).  I've looked up on the Newbies page, and have adapted the template (below). The facts are really simple for us.  We were excessively tired driving home and fell asleep momentarily at the wheel.  Pulled off at the first opportunity which was Strensham, parked, put our seats back and fell asleep.  we woke up, had a coffee and continued our journey home.  Thought we were doing what was correct, safe, legal and responsible.  did not notice any signs saying that we couldn't park, or with any detail (in fact we cannot remember seeing anything, but I guess there may have been some signs).  The adapted template is below for hopefully some guidance.  Also, should we do anything else at this stage (we have never corresponded with Nexus, DCN or Roadchef (Strensham operator).  Many thanks (and brilliant forum, so helpful so far).

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. The Defendant was also the driver at the time

 

3. On the day in question (15/7/18), I and my wife were driving home from Malmesbury to Wirral.  Just after midnight on 15th July, we had driven down from Liverpool to Malmesbury where later that day, we were hearing our son’s wedding bans read out and viewing their forthcoming wedding venue. The day before, we had opened our third restaurant which was 6 months of excessively long days, intensive stress and tiredness.  Typically opening a restaurant involves 18-20 hour days for months to get it to the point of opening (or at least does when you are a small independent).  We had stopped half way to stay in a hotel as we were. In the morning of 15th we continued our journey to Malmesbury, attended church, visited the wedding venue, had a small lunch and started the journey back home as we needed to be in our restaurant that night. We were very tired, but I opted to drive (as the less tired of the two). Once on the M5, I was struggling with staying away, and at one point found myself drifting lanes, momentarily lapsing into sleep.  I woke my wife and asked her to help keep me alert and we decided to pull in at whatever junction came next (either exit or service station).  We were very mindful of the motorway signs about not driving whilst tired, the Highway Code which instructs you not to do so and to stop and rest, as well as the very real danger of crashing.

The next exit was Strensham services.  Our plan was to stop and have a short sleep (maybe an hour or so) and then have a coffee and carry on our journey.  In driving into the services, we did not see any obvious sign about limited stays, parking charges, or contractual terms.  We pulled into the nearest parking bay, turned off our engine, reclined our seats and immediately fell asleep. No signage (which may have been there) was apparent, nor at a size to be legible whilst driving, and in a very tired state.  I woke up ) I am not sure at what time, felt better and woke my wife. We went into the services to use the toilet and buy some coffees and water.  We returned to our car, drank the coffee and continued our journey.  Our actions, we feel are entirely within the law and expected from the Highway Code, the Highways Agency advice on motorway screens and also what any responsible motorist should do.  If the signage had been clearly apparent and legible, we would have set ourselves an alarm to ensure we did not over-stay.  We there thus not capable to either read, understand or accept any small-print terms of any alleged contract from the claimant.

We were of the opinion that Motorway service stations existed for (amongst other things) to provide a stopping point to rest on a journey until it was safe to continue.

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:

 

 

Le_Kirk

You only need to post the parts that you have changed (normally paragraphs 2 & 3) as the rest of it is a template and unlikely to need correcting.  Defences are: -
1) legal/technical arguments setting out the type of car park, the bare facts of the claim and why you refute the claim
2) written in the third person (no "I" "me" "my") but "the defendant"
3) It should be constrained to just the facts and you get a chance to tell the story, the narrative, in the first person in the Witness Statement (WS) later in the process.

Redx

2) should say keeper and driver , losing the second sentence

A SAR should be emailed to the DPO at Group Nexus attaching a copy of the claim form and add copies of 2 recent redacted utility bills as proof of I D under the GDPR law to obtain all your data

Only post the adapted paragraphs , it's your homework that needs checking

peterkgb1

so something along the lines of: the signage and detail of any parking  contract contained on it was not readable when driving into the service station car park and thus no contract was entered into?

D_P_Dance

Have you complained t your MP?

Le_Kirk

peterkgb1 said:

so something along the lines of: the signage and detail of any parking  contract contained on it was not readable when driving into the service station car park and thus no contract was entered into?

Yes but using sentences.  If you read a few other posts you will see how it is done.  Look at those that have had a successful outcome.  Been a few recently.

peterkgb1

is there any easy way of finding the threads where someone has been successful at Small Claims Court?

Redx

Yes , do an mse search on a well known record title by queen 😁😁 initials are , AOBTD

KeithP

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

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

peterkgb1

Issue Date 28/7/21
AOS today (5/8/21)
Also sent off a SAR to Nexus
Thanks

KeithP

peterkgb1 said:

Issue Date 28/7/21
AOS today (5/8/21)

With a Claim Issue Date of 28th July, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 31st August 2021 to file your Defence.

That's over three weeks away. Plenty of time to produce a Defence and it is good to see you are not leaving it to the last minute.

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.