Claim Form - Help required with defence. .

Redx

The pictures are of a vehicle , not of you

So it's about what the vehicle did on that day , not about why you did , they monitor vehicles , not people

Coupon-mad

So the car is NOT shown stationary in a bay for more than 10 minutes? 

Then you should win by using HHJ Simpkiss' appalling decision, where he said (wrongly, but much of his judgment was wrong and just led by the barrister that OPS threw money at) that if Norma Wilshaw had been in the bay for less than ten minutes there would have been no PCN.

17.43 (I am parked in one of the bays. There is a pay and display sign at the bottom of the bay, which the image has captured. Someone is also entering my car.)

 You need to answer my question, there are two different types of bays there.  Which bay were you in?

Wizwacks

As  pay and display was written at the end of the bay were the car was parked it, it was one of the middle bays. 

I have attached the picture below. 

17.43 (The car is stationary in one of the bays. There is a pay and display sign at the bottom of the bay, which the image has captured. Someone is also entering my car.)

Coupon-mad

OK, thanks. I've already explained what wins this, then.

Johnersh

Devil's advocate:

1st photo appears consistent with waiting/unparked

2nd photo most definitely is parked as it is stationery and manoeuvred neatly into a bay, which is clearly marked as being subject to P&D restrictions.

That's not entirely consistent with taking a quick call, is it? 

Usual terms are for short periods or part thereof. D did not check the terms, preferring to remain in vehicle. 

This could be more difficult to defend than others we've seen on here. 

Coupon-mad

Except that this is the same place that Norma Wilshaw parked for 11 mins to take a call.

HHJ Simpkiss said expressly in his awful judgment in support of an horrific ex clamper firm, that she wouldn't have got a PCN had she been there for less than 10 mins in a bay.  How she was supposed to know that (or knowingly consent to being filmed) given the entrance sign was twisted away from the road, God knows.

Johnersh

I recognise that, @Coupon-mad but I'm cautious.  The point I wish to understand is whether that was obiter (ie. akin to a remark in passing) or part of the ratio (a key element) of the judgment? 

I fear it could be the former but don't have the judgment to hand. Obviously the appeal concerned specific points that were being addressed. 

Coupon-mad

72. Nevertheless, it would be a breach of the Code for the Claimant not to follow Paragraph 13(2) but after 10 minutes a contract would come into existence. Thus, if the Respondent had driven off before the expiry of 10 minutes from her arrival in the parking space she would not be contractually bound to pay the charge.

Wizwacks

Hi. 

First draft. Appreciate any feedback. Tried to take on board what everyone has said. 

IN THE COUNTY COURT

Claim No.: 

Between

One Parking Solution Ltd

(Claimant) 

- and -  

 (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 points included are from the Defendants own knowledge and limited understanding Law, Codes of practise and procedures relating to the specific area of Parking Charge Notices  As an unrepresented litigant-in-person I seek the Court's permission to amend and supplement this defence as may be required upon disclosure of the claimant's case.

 

2.     The Defendant can confirm he was the driver and registered keeper of said vehicle, but liability Is denied.

 

3.     The defendant cannot recall the events from an unremarkable day almost two years ago other than that they entered the car park to collect a passenger. 
In the persuasive appeal court case of Laura Jopson vs Homeguard Services Ltd, case number 9GF0A9E, Judge Harris QC stated that loading/unloading is not parking. Picking up a passenger is loading. The claimant's images show that the route taken by the defendant's car would have precluded the driver from seeing signs showing the terms and conditions. In the appeal court case  of One Parking vs Norma Wiltshire case number F0HM9E9Z Judge Simpkiss stated that the BPA Code for grace period was 10 minutes whilst remaining in the parking space before a ticket should be purchased. The defendant received a Notice to Keeper a week after the alleged event, stating that the reason for issue of the charge was, "Vehicle Not Pre-authorised." This is a clause of impossibility. It is impossible for a motorist to know a vehicle needs to be pre-authorised before they have entered the site and had the opportunity to read the parking terms and conditions within the car park.

 

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.  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').

 

7.     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

8.     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.  

 

9.     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.

 

10.  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.  

 

11.  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.

 

12.  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.

 

13.  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:

Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

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.

 

14.  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.

 

15.  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.

 

16.  In the matter of costs, the Defendant seeks:

(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:

Redx

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