Help with MCOL defence- Issued by Gladstones Solicitors

Spacey786

County Court Claim - Private PCN from UK CPM - Page 4 — MoneySavingExpert Forum

I have been reading upon this, would an identical statement work?

Cheers

KeithP

That example is over two years old.
I think you would be better off starting with the version in the template Defence thread.

Coupon-mad

Your main defence fact is that no signs were seen, at all, due to there being no sign at the entrance (contrary to the IPC Code of Practice) and whilst your research before this defence has shown a sign a few metres back, it has been inexplicably placed in a bush and is so heavily obscured as to be completely invisible, almost as if this ex-clamper Claimant doesn't want their signs to be prominent, at all.

Spacey786

Coupon-mad said:

Your main defence fact is that no signs were seen, at all, due to there being no sign at the entrance (contrary to the IPC Code of Practice) and whilst your research before this defence has shown a sign a few metres back, it has been inexplicably placed in a bush and is so heavily obscured as to be completely invisible, almost as if this ex-clamper Claimant doesn't want their signs to be prominent, at all.

Thank you, yes it is obvious of how they have placed their signs... one almost hidden and the other at the far end of the car park. I will base my defence statement on that, on another note do I send off for a SAR to the UKCPM? or just focus on my defence for the time being? Thanks

Le_Kirk

Since it will only take 20 - 30 minutes to adapt the defence template, you could submit the SAR either before or after that.  The data that results from it will not be needed for the defence (useful later at witness statement time) and will not arrive for 30 days anyway.

Umkomaas

It will help you in due course if you could plot out the position of the other PPC signs on the bird's eye view of the car park.

Spacey786

Thank you all, I am away over the weekend but will do so.. @coupon-mad thanks .. I will also take a picture of the sign at the far end that displays the T&C’s it is roughly 9ft high and the small font at the bottom makes it unreadable from a distance. 

Spacey786

Hello All,

Below I have prepared a defence t submit before the deadline 09/09/2021; would appreciate your views on this and ould request comments in to present this properly. Although I have not admitted to being the driver at the time, should I continue with this? my wife is also a named driver on the vehicle.. 

In The County Court
Claim No: XXXXXXX
Between
UK Car Park Management Limited (Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE
____________

1. The Defendant was the registered keeper of the vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. It is denied that any 'parking charges’ are owed and any debt is denied in its entirety because no keeper liability, no cause for action against the defendant. The claimant has failed to show locus standi, the defendant does not believe they have a right to bring an action against anyone.

3. Accordingly, it is denied that the driver breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct as no enforceable contract offered at the time by claimant, no cause for action can have arisen.

4. The Claimant also stated in the Particulars of Claim that ‘the driver of the Vehicle failed to pay the parking charge within 28 days of issue yet failed to do so’. However, the claimant has failed to provide evidence of that agreement and failed to identify who the driver that it is referring to.

5. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event hence incapable of binding the driver as the claimant failed to comply with International Parking Company Code of Practice ‘PART E Schedule 1 – Signage’. The signs entering into the car park are almost hidden with overgrown shrubs surrounding the sign make it almost invisible. It is also noted that the second sign is erected far away from the alleged parking area 8ft above the ground in small fonts displaying the terms & conditions

6.  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.

7.       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.

8.       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.  

9.  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').

10.  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

11.       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.  

12.       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.

13.   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.  

14.   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.

15.       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.

16.   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.

17.   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.

18.  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:

19.   (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.

20.   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

Is that based on the standard defence template found in the first five announcements on the front page of the forum?  If so, you only need to amend or add to paragraphs 2 & 3 and then show those here for critique.  If you show the whole template, please indicate where you have made changes.

Coupon-mad

That is not the template defence.

remove #4.  

People keep zoning in on that ‘nothing’ point and it really is nothing. There was deemed agreement by the conduct of parking where signs are up...