Uk car park management privacy

Le_Kirk

gamer123 said:

The facts are that the vehicle, registration xxxxx, of which the Defendant is the registered keeper, did in fact park in a numbered bay. The claimant claims that you needed a resident permit to park in the that bay. The defendant was parked beyond a signage of a the entrance sign indicating that beyond that point, users of the facility can park on the site. Therefore resident parking should not have been put in to place beyond the "Car park for shop users only" signage at the entrance. This would indicate that the land after this sign is not owned or should not have been used by the claimant into misleading customer's customers into the claimants terms and conditions. Lack of The unclear, unlit, small font, and poorly placed signages signs written in small font and placed beyond the entrance point would indicate that it was the claimants intentions to mislead the defendant. It is also the understanding that the amount of time that the claimant gave the defendant before issuing a parking charge notice (consideration period) is not sufficient enough time for the defendant to decide whether or not to except accept the term's and conditions of the claimant. Social distancing and road hazards* was also a factor into needing additional time to fully read the signage and to make a judgement.

Couple of changes for you.  *I would enter something here to explain what you mean, such as, having to wait in a well-spaced queue of people to read the signs.

gamer123

Ok I have made the adjustments. Does this look better now?



The facts are that the vehicle, registration xxxxx, of which the Defendant is the registered keeper, did in fact park in a numbered bay. The claimant claims that you needed a resident permit to park in that bay. The defendant was parked beyond the entrance sign indicating that beyond that point, users of the facility can park on the site. Therefore resident parking should not have been put in to place beyond the "Car park for shop users only" signage at the entrance. This would indicate that the land after this sign is not owned or should not have been used by the claimant into misleading customers into the claimants terms and conditions. The unclear, unlit, signs written in small font and placed beyond the entrance point would indicate that it was the claimants intentions to mislead the defendant. It is also the understanding that the amount of time that the claimant gave the defendant before issuing a parking charge notice (consideration period) is not sufficient for the defendant to decide whether or not to accept the term's and conditions of the claimant. Social distancing and road hazards such as the narrow road with oncoming traffic and having to wait in a well-spaced queue of people to read the sign was also a factor into needing additional time to fully read the signage and to make a judgement.

gamer123

Hi I have written out the whole defence. How can I show it to you before i send it off? I'm using word on mobile

Coupon-mad

gamer123 said:Ok I have made the adjustments. Does this look better now?

3.  The facts are that the driver did in fact park in a numbered bay and was using the onsite shop, relying upon the entrance sign indicating that beyond that point, users of the facility can park on the site. 

4.  It seems from the claimant's case that there are two different rules within one site.  It was absolutely unclear that any bays outside this shop were reserved for resident parking.  The invitation to park flowed from the "Car park for shop users only" signage at the entrance that the driver saw.  Any other unlit signs that may have contradicted with that offer to park were not seen, due to obscure placement and minuscule text size.

5.  It is also the Defendant's case that the ticket was issued in haste.  The consideration period was not sufficient to decide whether or not to accept the terms and conditions and it is averred that the ticket was predatory and issued in breach of the applicable Code of Practice, due to the above facts.

How about the above?  You will need to re-number the template below that, of course.

gamer123

Is this ok? I need to know asap so I can send it off.


IN THE COUNTY COURT

Claim No: xxx

Between

UK CAR PARK MANAGEMENT LIMITED

(Claimant)

  -and-

MR 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 facts are that the driver did in fact park in a numbered bay and was using the onsite shop, relying upon the entrance sign indicating that beyond that point, users of the facility can park on the site. 

4.  It seems from the claimant’s case that there are two different rules within one site.  It was absolutely unclear that any bays outside this shop were reserved for resident parking.  The invitation to park flowed from the “Car park for shop users only” signage at the entrance that the driver saw.  Any other unlit signs that may have contradicted with that offer to park were not seen, due to obscure placement and minuscule text size.

5.  It is also the Defendant’s case that the ticket was issued in haste.  The consideration period was not sufficient to decide whether or not to accept the terms and conditions and it is averred that the ticket was predatory and issued in breach of the applicable Code of Practice, due to the above facts.

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

(iii)                 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:

 

gamer123

I have a question do you merge the defence pages into one pdf or is every page of the defence a separate pdf to send to the email?

Jenni_D

One file with everything in it, preferably with bookmarks to give quick access to the important parts/sections. If the file is huge there are online resources that can help to compress it.  

gamer123

Thanks Jenni you have been a great help and everyone else. I have sent the defence 40 minutes before deadline passes👍

Le_Kirk

gamer123 said:

Thanks Jenni you have been a great help and everyone else. I have sent the defence 40 minutes before deadline passes👍

Well done; did you receive an auto reply from CCBC?  Keep checking your MCOL status page and make sure it showsthe receipt of your defence.

gamer123

I believe so. Got auto "Please except this receipt as a response to your email".