UKCPM County Court Claim HELP

1505grandad

When writing the correct Defence make sure the claimant's name is as stated on the claim form.

chris0147

1505grandad said:

When writing the correct Defence make sure the claimant's name is as stated on the claim form.

The claimant's name is the solicitor, so I thought i should put the name of the parking firm?

 Should I put her name on as it said on the claim form?

chris0147

IN THE COUNTY COURT

Claim No.: XXXXXXXX

 

Between

 

UK Car Parking Management (Claimant)

 

-and-  

 

 

XXXXXXXXXXX (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.

 

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

 

 

Background

3.   It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXXX XXX which is the subject of these proceedings. The vehicle is insured with [provider] with [number] of named drivers permitted to use it.

4.   It is admitted that on the dates the Defendant's vehicle was parked at [location].

 

 

5.   The Defendant received the letters in the post, but is denied to accept the demand as there is no breach of the contract. The Defendant returned the letters back to senders as it is no longer accepted. The claimant keep sending the letters back to Defendant to try demand for more which is unlawful.

 

 

6.   The Defendant is a resident [location] since birth. It have state nothing in the tenancy agreement regarding to parking with display a permit. The Claimant gave the resident a wrong permit as a visitor which the Defendant is a resident and not a visitor. There is no need to display the permit as the landowner is happy for the residents to park in a private land. There is no contract is breach and there is no loss. 

 

 

7.   It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

7.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
7.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
7.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
7.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

7.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract

8.   It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

9.   The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

9.   Accordingly it is denied that:
9.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
9.2. there was any obligation (at all) to display a permit; and
9.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

chris0147

Alternative Defence - Failure to set out clearly parking terms

10.   In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

10.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
10.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
10.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
10.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
10.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

11.   It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

12.   It is denied that the Claimant has any entitlement to the sums sought.

13.   It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

14.   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.

 

15.   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.

 

 

16.   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.  

 

17.   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').

 

18.   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

19.   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. 

chris0147

20.   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.

 

21.   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. 

 

22.   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.

 

23.   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.

 

24.   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.

 

25.   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.

 

26.   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:

27.   (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.

28.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. In relation to parking on private land, it is settled law from the Supreme Court, that a parking charge must be set at a level which includes recovery of the costs of operating a scheme.  However, this Claimant is claiming a global sum of £160. This figure is a penalty, far exceeding the £85 parking charge in the ParkingEye Ltd v Beavis case.

 

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:  …………………………….…………………………….                  

Defendant’s name:          …………………………….…………………………….

Date:                              …………………………….…………………………….

chris0147

Alright, I have posting the update drafts for defence that I have done it tonight. Any changes that I need to make, what paragraph I need to add or remove please let me know

Coupon-mad

The claimant is either the solicitor nor the name your first draft put.

Le_Kirk

5.   The Defendant received the letters in the post, but is denied to accept the demand as there is no breach of the contract. The Defendant returned the letters back to senders as it is no longer accepted. The claimant keep sending the letters back to Defendant to try demand for more which is unlawful.
 
6.   The Defendant is a resident [location] since birth. It have state nothing in the tenancy agreement regarding to parking with display a permit. The Claimant gave the resident a wrong permit as a visitor which the Defendant is a resident and not a visitor. There is no need to display the permit as the landowner is happy for the residents to park in a private land. There is no contract is breach and there is no loss. 

Paragraph 5 is written using poor grammar and makes no sense.  Paragraph 6 is also badly constructed.  Is there someone who could help you to write what you are trying to say?  All you need to say is that the defendant is a [long term] resident and has a tenancy agreement, which includes parking with no need to display a permit of any description.  If you really feel you want to include "letters being received and sent back and landowner being happy", save it for the Witness Statement later in the process.

chris0147

Coupon-mad said:

The claimant is either the solicitor nor the name your first draft put.

Do I need to put the claimant's name that say on the claim form?

chris0147

Le_Kirk said:

5.   The Defendant received the letters in the post, but is denied to accept the demand as there is no breach of the contract. The Defendant returned the letters back to senders as it is no longer accepted. The claimant keep sending the letters back to Defendant to try demand for more which is unlawful.
 
6.   The Defendant is a resident [location] since birth. It have state nothing in the tenancy agreement regarding to parking with display a permit. The Claimant gave the resident a wrong permit as a visitor which the Defendant is a resident and not a visitor. There is no need to display the permit as the landowner is happy for the residents to park in a private land. There is no contract is breach and there is no loss. 

Paragraph 5 is written using poor grammar and makes no sense.  Paragraph 6 is also badly constructed.  Is there someone who could help you to write what you are trying to say?  All you need to say is that the defendant is a [long term] resident and has a tenancy agreement, which includes parking with no need to display a permit of any description.  If you really feel you want to include "letters being received and sent back and landowner being happy", save it for the Witness Statement later in the process.

I'm not that good with writing my own so I need your help with writing  Paragraph 5 and 6. No I dont have anyone to help me with this as this is my case so I have to do it myself.

Here is the update for Paragraph 5:

5.     The Defendant received the letters in the post, but is denied to accept the demand as there is no breach of the contract. The Defendant has returned the letters back to Claimant as it is no longer accepted. The Claimant sent out more letters to Defendant to try demand for more with additional costs which is unlawful.

Paragraph 6:

6.     The Defendant is a long term resident and has a tenancy agreement, which includes parking with no need to display a permit of any description. The Claimant gave the Defendant a wrong permit as a visitor which the Defendant is a resident and not a visitor. 


What I want you to understand with the Paragraph 5 that I have received the letters in the post, but I am denied to accept their demand as there is no breach of the contract so I have returned the letters back to Claimant. The Claimant sent the letters to Defendant to demand for more with additional costs which is unlawful.


As for Paragraph 6, I am a long term resident and has tenancy agreement, which includes parking with no need to display a permit of any description. The Claimant gave me the wrong permit as a visitor which I am a resident and not a visitor. 


What do you think?

I hope it will give you some idea what I could add in the Paragraph so I will add it to my Defence.