Parking Awareness Services pending county court

naiveparker

IN February 2020 , I went to a local pub for a meal and on pulling into the car park I saw a sign concerning parking .  I checked with  the barmaid on entering , who informed me I needed to input my car registration in the device . I did this straight away and even have an approximate time, I then enjoyed a drink and a meal all paid on  my debit card and have proof of this. 
Unfortunately following this , I  was issued with a parking charge by Parking awareness services, I admitted I was the driver ( I now know that htis was the wrong thing to do ) and appealed but was unsuccessful. They state that there is no registration that matches mine , I can only presume that I have mistyped, but any requests to see the data have been turned down on the grounds of privacy. 
Over the last year several letters have gone back and forth all to no avail and I have now been issued with a county court summons, which I am planning on defending.
 I have adapted a template from your forum but would be grateful for further advice . I have about a week before i need to submit my defense.
 

The facts as known to the Defendant:

1.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

        It is admitted that the Defendant was the driver of the vehicle in question but liability is denied.

 

2.   On entering the car park the Defendant noted the instructions for parking. The Defendant entered the establishment as a customer, spoke to a member of staff to clarify and was told to input their details into the terminal. The Defendant entered their car registration between the hours of 19.00-19.15 and proceeded to enjoy a drink and meal with friends, which they paid for with their debit card, documentation from their bank is available to support this.  The Defendant was shocked to receive a parking charge following this and placed an appeal with the company, which was rejected.

It is the Defendants understanding that these parking measures are put in place to deter people from using the car park if they are not a customer of the establishment. The Defendant has proof that they were a paying customer of the establishment at the time in question. The Defendant also has the support of the owner of the establishment who wrote to the Claimant to recommend that the parking charge be dropped.

The Defendant is shocked that the Claimant has continued with this action despite evidence that the Defendant has followed the correct procedure and was a customer at the establishment. Even if the Defendant incorrectly entered their registration details, it was a genuine mistake.

 

3.  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.

4.       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.

5.       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.  

6.  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').

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

7.       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.  

8.       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.

9.   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.  

10.   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.

11.       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.

12.   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.

13.   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.

 

14.  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 landowner of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landowner'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.

15. Furthermore the extra charges are an abuse of process, I refer you to the case of G4QZ465V Excel v Wilkinson whereby it was ruled that given the costs of recovery are built into the parking charge as a cost of operating the scheme, this is a double recovery or an attempt by the claimant to try to add in an additional charge.

The fine listed on the PCN charge £100 and yet the claimant is attempting to recover £160 (plus £25 court fees and £50 legal representative's costs) a difference of £60. In the particular's of the claim the claimant describes these as 'contractual costs and interest' just as in the Excel v Wilkinson case. As a result, the claimant is not entitled to recover that sum.

As per the Excel v Wilkinson case, this is an abuse of process by the claimant, an attempt to recover sums they are not entitled to by seeking unliquidated damages as liquidated damages to avoid a hearing before a judge in relation to default judgement, or by seeking to recover unfair sums which would be recovered by a default judgement application despite the sums not being discoverable at law or by seeking to circumvent CPR 27.14. Once again the claimant is attempting to abuse the process of Court, this is a serious matter and simply disallowing the £60 claim is not sufficient, the defendant thereby claims that the case must be struck off. The claimant continues to claim £60 damages/costs to profit from undefended cases and the court must show its' disapproval for this abuse of process.

In the matter of costs, the Defendant seeks:

16.   (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.

17.   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:

 

KeithP

naiveparker said:

I have now been issued with a county court summons, which I am planning on defending.
I have about a week before i need to submit my defense.

Hello and welcome.

It is not a summons.

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.

Fruitcake

This is not a criticism, but the law is a pedant and you must use the correct legal terms.
There has been no summons because this is not a criminal case.
Defence is not spelt with an S.


We only need to see the parts of the template defence you have amended, which will normally be paragraphs 2 and 3.
Nobody is going to check Coupon-mad's work, so if you have changed any other paragraphs you need to tell us. If you haven't changed her work, then please don't post it.

I think your para 1 should actually be para 2, and your para 2 should actually be para 3.

Have you asked the PPC to check the log of VRMs entered on the evening in question as they should have "fuzzy logic" identify a near miss to your VRM?
You should include this as a defence point in that a reputable company would have a method whereby they can detect and correct minor mistakes with a VRM entry.

Indeed, the IPC have made mention of using "typo-proof" systems whereby it is impossible to enter the VRM of a vehicle that is not in the car park, and the BPA state that failure to input a VRM at all counts as a major keying error that should only result in a £20 parking charge being issued.

From the IPC's Twitter feed.

The International Parking Community (IPC) on Twitter: "@_TheIPC's mantra is that no motorist should be marginalised - or humiliated! (See news article below) @_TheIPC's award nominated "Get Your Reg Right" campaign urges the manufacture of #typoproof #parking payment systems as a moral duty. #mondaythoughts https://t.co/izGqyc1wO0 https://t.co/ztH9lbYpX2" / Twitter

Redx

The 2 should say keeper and driver , losing the second sentence above ( showing as 1 in your draft , but 1 is already in the template defence and is unchanged

3 becomes the facts of inputting your correct VRM into the tablet at the reception or bar , legitimate customer , de minimis , a trivial matter , the IPC CoP has a section on mis keying , etc

Only post what you changed , numbered 2 , 3 etc

The template defence from 4 onwards is slotted in and renumbered accordingly , typically 4 becomes 7 etc

There is no S in defence , set your keyboard to UK English please

Post your revamped draft paragraphs below , but none of what coupon mad wrote in her template

Egbert_Nobacon

Don't suggest that you may have entered an incorrect registration.
State it's likely a faulty terminal putting the onus on them to prove otherwise with maintenance records etc.

Le_Kirk

Egbert_Nobacon said:

Don't suggest that you may have entered an incorrect registration.
State it's likely a faulty terminal putting the onus on them to prove otherwise with maintenance records etc.

.... and why did the faulty terminal belonging to the parking company NOT issue a receipt in a durable medium?  Had it done so, the error created by the faulty device could have been corrected immediately and there would have been no need for this expensive time wasting exercise!

D_P_Dance

The fine listed on the PCN charge £100 and yet the claimant is attempting to recover £160 

It is not a fine and the added £60 is almost certainly unlawful,  Please read this and complain to your MP,

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V Excel v Wilkinson.pdf?dl=0

naiveparker

Thank you for your response on this matter , just to clarify any points raised.
The issue date was the 28th of July and I filed an acknowledgment of service on the 1st of August.
I removed paragraph 1 as I wasn't sure it was relevant, as I felt that as I had read the signs and entered my registration number , I had possibly entered into a contract..
There are lots of references to signs and POFA I was unsure whether to include them as I am not disputing seeing signs or being the driver, any advice please?
In paragraph 15 do I need to change the amounts to reflect my own case?
I did contact the PPC and requested to see the the log of VRM for the relevant period , but this was denied on the grounds of data protection, although they did state that there were no car registrations with the same first 4 digits or similar on the day.
I have included the Excel v Wilkinson in paragraph 15.
thank you once again

This is my amended defence

1.       It is admitted that the Defendant was the registered keeper and driver of the vehicle in question but liability is denied. 

         

2.   On entering the car park the Defendant noted the instructions for parking. The Defendant entered the establishment as a customer, spoke to a member of staff to clarify and was told to input their details into the terminal. The Defendant entered their car registration between the hours of 19.00-19.15 and proceeded to enjoy a drink and meal with friends, which they paid for with their debit card, documentation from their bank is available to support this.  The Defendant was shocked to receive a parking charge following this and placed an appeal with the company, which was rejected.

It is the Defendants understanding that these parking measures are put in place to deter people from using the car park if they are not a customer of the establishment. The Defendant has proof that they were a paying customer of the establishment at the time in question. The Defendant also has the support of the owner of the establishment who wrote to the Claimant to recommend that the parking charge be dropped.

The defendant believes that they entered their details correctly, which suggest that the machine could be faulty or required  calibrating and If the machine had offered a receipt this case would never have occurred. Even if the Defendant incorrectly entered their registration details, it was a genuine mistake, the IPC CoP has a section on miskeying.

The Defendant is shocked that the Claimant has continued with this action despite evidence that the Defendant has followed the correct procedure and was a customer at the establishment.

KeithP

naiveparker said:

The issue date was the 28th of July and I filed an acknowledgment of service on the 1st of August.

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 nearly two weeks away. Plenty of time to produce a Defence, but please don't leave 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.

Le_Kirk

I would suggest you use the defence template as is and only adjust/edit paragraphs 2 & 3.  It has been written by @Coupon-mad to suit any situation where the claimant is adding spurious charges.

naiveparker

Thank you for your advice. I am still unsure whether to include all the paragraphs coupon -mad has kindly written.
As I saw the signs and did what the company asked , did I enter into a contract ? 

Should I include the paragraph re signage as I am not disputing that I saw this or is it best to include the template as it stands ?