Help with MCOL defence- Issued by Gladstones Solicitors

Spacey786

Thanks Coupon-mad & Le_Kirk ,this is the template I used & added some points from another defence statement

Suggested template defence to adapt for all parking charge cases where they add false admin costs — MoneySavingExpert Forum

If this is not the correct one, would appreciate a link for it.. thanks 

Coupon-mad

It’s the right one but hasn’t been used.  Only paras 2 and 3 need changing.

Spacey786

Coupon-mad said:

It’s the right one but hasn’t been used.  Only paras 2 and 3 need changing.

Thanks for the guidance, I have used the template as below & it is the statement I have generated for your scrutiny in point 2 & 3 as per Coupon-mad. I intend to send this off tonight via email & also in the defendant area online in the MCOL- If I can kindly request your views in your earliest convenience, uch appreciated

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, on the given dates as per the PCN issued, I had entered the car park to access the local community centre across the road through a small entrance covered by bushes .  

3. Whilst entering the car park, I did not notice any signs to warn me of parking at that particular car park or it was managed by a private car parking firm. After returning to may car, to my surprise I found a parking charge notice on my windscreen. Having a look around I then spot a "Private car park" sign in the corner a few meters away from the car park entrance and next to it was another sign almost hidden by overgrown shrubs with the terms and conditions on it. 

 After revisiting the car park, I have taken pictures of the signs that the claimant is relying on in entering into a contract. Therefore 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 approximately 9-ft above the ground in small fonts displaying the terms & conditions.

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.  

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

(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.

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:

KeithP

Spacey786 said:

I intend to send this off tonight via email & also in the defendant area online in the MCOL...

Definitely do not even try to file your Defence via the MoneyClaimsOnline website. 

There is nothing in any of the guidance here that even hints that that is a good idea - in fact quite the opposite.

Bargepole's 'what happens when' post linked from the NEWBIES thread even says...

...trying to fit it [a Defence] in the online box destroys the formatting, and makes it hard for the Judge to read.

That's without even pointing out that the box on the MCOL website is not big enough for your Defence. This means that your Defence would be truncated to fit the box. It also means that the Defence filed by email would be ignored.

However, following recent issues we are now suggesting that your Defence should also be emailed to the Claimant. Send the one email to two addressees. When emailing it to the CCBC, add an additional addressee of the Claimant.

Spacey786

KeithP said:

Spacey786 said:

I intend to send this off tonight via email & also in the defendant area online in the MCOL...

Definitely do not even try to file your Defence via the MoneyClaimsOnline website. 

There is nothing in any of the guidance here that even hints that that is a good idea - in fact quite the opposite.

Bargepole's 'what happens when' post linked from the NEWBIES thread even says...

...trying to fit it [a Defence] in the online box destroys the formatting, and makes it hard for the Judge to read.

That's without even pointing out that the box on the MCOL website is not big enough for your Defence. This means that your Defence would be truncated to fit the box. It also means that the Defence filed by email would be ignored.

Thanks KeithP for the valuable point, on point 2 & 3 where I have entered the information... any comments? please..

Many Thanks

KeithP

Have you noticed that the rest of the Defence is all written in the third person? 
The word 'I' is not used in a Defence.
Adjust paragraphs 2 and 3 and the unnumbered paragraph after paragraph 3 accordingly.

So paragraph 2 becomes...

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question, on the given dates as per the PCN issued, the driver had entered the car park to access the local community centre across the road through a small entrance covered by bushes .

And your paragraph 3 becomes...

3. Whilst entering the car park, the driver did not notice any signs to warn him of parking at that particular car park or it was managed by a private car parking firm. After returning to the car, to his surprise the driver found a parking charge notice on the windscreen. Having a look around the driver then saw a "Private car park" sign in the corner a few metres away from the car park entrance and next to it was another sign almost hidden by overgrown shrubs with the terms and conditions on it.

I've made other slight adjustments to the spelling and grammar too.

Your unnumbered paragraph after paragraph 3  needs similar adjustment.
Also the first sentence of that paragraph could perhaps be better worded as... 
After visiting the car park, the Defendant has taken pictures of the signs that the claimant is relying on in entering into a contract.

Also in that unnumbered paragraph, IPC does not stand for International Parking Company.

Every paragraph needs a number.

Spacey786

KeithP said:

Have you noticed that the rest of the Defence is all written in the third person? 
The word 'I' is not used in a Defence.
Adjust paragraphs 2 and 3 and the unnumbered paragraph after paragraph 3 accordingly.

So paragraph 2 becomes...

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question, on the given dates as per the PCN issued, the driver had entered the car park to access the local community centre across the road through a small entrance covered by bushes .

And your paragraph 3 becomes...

3. Whilst entering the car park, the driver did not notice any signs to warn him of parking at that particular car park or it was managed by a private car parking firm. After returning to may car, to his surprise the driver found a parking charge notice on the windscreen. Having a look around the driver then saw a "Private car park" sign in the corner a few metres away from the car park entrance and next to it was another sign almost hidden by overgrown shrubs with the terms and conditions on it.

I've made other slight adjustments to the spelling and grammar too.

Your unnumbered paragraph after paragraph 3  needs similar adjustment.
Also the first sentence of that paragraph could perhaps be better worded as... 
After visiting the car park, the Defendant has taken pictures of the signs that the claimant is relying on in entering into a contract.

Also in that unnumbered paragraph, IPC does not stand for International Parking Company.

Every paragraph needs a number.

Thanks ever so much, here is take 2 for your perusal, I have changed International parking company to International parking community as per bill presented to the parliament as below; really appreciate your help on this..

Parking (Code of Practice) (parliament.uk) 

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, on the given dates as per the PCN issued, the driver had entered the car park to access the local community centre across the road through a small entrance covered by bushes .

3. Whilst entering the car park, the driver did not notice any signs to warn him of parking at that particular car park or it was managed by a private car parking firm. After returning to the car, to his surprise the driver found a parking charge notice on the windscreen. Having a look around the driver then saw a "Private car park" sign in the corner half covered by overgrown shrubs a few metres away from the car park entrance and next to it was another sign almost hidden by again overgrown shrubs with the terms and conditions on it.

4. After visiting the car park, the defendant has taken pictures of the signs that the claimant is relying on in entering into a contract. Therefore 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 Community 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 approximately 9-ft above the ground in small fonts displaying the terms & conditions.

5.  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.

6.       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.

7.       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.  

8.  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').

9.  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

10.       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.  

11.       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.

12.   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.  

13.   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.

14.       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.

15.   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.

16.   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.

17.  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:

18.   (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.

19.   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:

Spacey786

Here is the claimants particulars of claim received, the 2nd charge was not a windscreen PCN but a postal PCN

Spacey786

I have sent off my defence last night, just wanted to thank everyone for helping & guiding.. it's much appreciated. 
Looking towards a positive result..

Umkomaas

Spacey786 said:

I have sent off my defence last night, just wanted to thank everyone for helping & guiding.. it's much appreciated. 
Looking towards a positive result..

There's more to do over the coming weeks and months. The job's not finished.