County Court Claim form recieved from Private Parking firm

ashthemash

Hi, I have received a county court claim form and have only a couple of days left to respond to. Need to file by 11 September. I have drafted my defence although valid but it seems too simple and a little risky. I would appreciate any help. I tried to search this forum for any defence templates but I can't seem to find anything relevant from the search results. 

Here is my draft defence. I would appreciate any comments and thoughts. Happy to be directed to a case that might be relevant.
...................................

I am xxxx, of xxx, the defendant in this case.

 

The claimant is claiming a sum of money for alleged breach of terms of parking stipulated on the signage ‘ the contract’. The PCN mentions reason of issue as Reason 1 ‘ No Permit’ Reason 2 ‘Unauthorised parking’

 

The claim is denied in its entirety. I am not liable to the Claimant for the sum stated or any amount at all, for the following reasons, any one of which is fatal to the claimant’s case.

 

1) The signs in the car park do not mention ‘permit’ or ‘permits’  therefore; the alleged breach of ‘no permit’ cannot be enforced.

Please see the pictures attached as an evidence.

2) The signs are forbidding only.

The signage in the car park is of a “forbidding” nature.  It just prohibits parking without offering any terms and conditions for parking, in other words the ‘offer’ element of a contract is absent and therefore no contract was ever formed between the claimant and the defendant.

I refer you to the following case law:

PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016]

In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

 

Furthermore, in response to the request for documents, the solicitors for the claimant kindly supplied a picture of a signage on which they rely in this case. This signage is not located in the car park where the car was parked and therefore is not relevant to this case and therefore has no bearing whatsoever on this case. The claimant has not supplied any evidence to suggest otherwise.

KeithP

Hello and welcome to the forums.

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

ashthemash

KeithP said:

Hello and welcome to the forums.

What is the Issue Date on your County Court Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

claim issued. 09 Aug 2021

assumed date of service. 14 Aug 2021 (5 days after the date of issue)

date of acknowledgement - 25 Aug 2021 (intent to defend all of the claim)

deadline for defence - 11 Sep 2021

"Your MCOL Claim History", sorry I am not sure what this means?

KeithP

Yes, those dates are good, except that you have two extra days to file a Defence - until 4pm on Monday 13th September. A Defence filing deadline will never be on a Saturday, Sunday or Bank Holiday.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

By 'MCOL Claim History' I meant the log of activity that is maintained by the County Court Business Centre for each case - at https://www.moneyclaim.gov.uk.

ashthemash

KeithP said:

Yes, those dates are good, except that you have two extra days to file a Defence - until 4pm on Monday 13th September. A Defence filing deadline will never be on a Saturday, Sunday or Bank Holiday.

Thank you Keith for finding an extra weekend for me!! And for other directions. 

Redx

The coupon mad defence template is linked in the newbies FAQ sticky thread near the top of the forum in announcements , plus in its own sticky thread up there too. We recommend that you adapt paragraphs 2 and 3 of that template , few people will comment on any off piste Defence draft

If you login to MCOL , you will see the claim history

No evidence is submitted with the defence

ashthemash

Redx said:

The coupon mad defence template is linked in the newbies FAQ sticky thread near the top of the forum in announcements , plus in its own sticky thread up there too. We recommend that you adapt paragraphs 2 and 3 of that template , few people will comment on any off piste Defence draft

If you login to MCOL , you will see the claim history

No evidence is submitted with the defence

Thank you. The MCOL website allows a text box which seems to allow only limited word count and I am not able to fit all the text in there. In any case, at the moment the website seems to be down as I am getting an error. They have provided an email address, is it better to send via email ? I read the thread and you had suggested email as well, is that still valid?

ashthemash

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 and the driver in question, but liability is denied. 

3.   The signage in the car park was of a “forbidding” nature.  The signs just prohibited parking without offering any terms and conditions for parking, in other words the ‘offer’ element of a contract was absent and therefore no contract was ever formed between the claimant and the defendant.

3.1  I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016]

In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

3.2 The claimant is claiming a sum of money for alleged breach of terms of parking stipulated on the signage ‘ the contract’. The PCN mentions reason of issue as Reason 1 ‘ No Permit’ Reason 2 ‘Unauthorised parking’

3.3 The signs in the car park did not mention ‘permit’ or ‘permits’  therefore; the alleged breach of ‘no permit’ cannot be enforced.

3.4 The claimant kindly supplied the defendant a picture of a sign with parking terms and conditions ,through their solicitors on which they rely in this case. This sign was NOT located where the car was parked and even as recently as 11 September 2021 the sign is not there, therefore the sign and any terms and conditions contained within, are not relevant to this case and therefore has no bearing whatsoever on this case. The claimant has not supplied any evidence to suggest otherwise such as a picture of my car near the sign.

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 money claim 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:

 

 

Le_Kirk

Do NOT put anything in that text box not even a space or a full stop else that will be taken as your defence!  Use the instructions in the NEWBIE sticky or in the defence template.

KeithP

ashthemash said:

Redx said:

The coupon mad defence template is linked in the newbies FAQ sticky thread near the top of the forum in announcements , plus in its own sticky thread up there too. We recommend that you adapt paragraphs 2 and 3 of that template , few people will comment on any off piste Defence draft

If you login to MCOL , you will see the claim history

No evidence is submitted with the defence

The MCOL website allows a text box which seems to allow only limited word count and I am not able to fit all the text in there.

I seem to be writing this every day...



Back on 7th September on this very thread I wrote...

KeithP said:

To create a Defence, and then file a Defence by email...

See those words... by email?



Earlier this week I wrote this post...

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.

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.

Coupon-mad

Yep, none of the advice says ‘email as well’ and bargepole explains why NOT to use MCOL, in his post I show in the NEWBIES thread under the red heading ‘Important - know what happens when’.

We now had this said 3 times in as many days and one Defendant even went ahead and ignored the advice to email it and hacked the Defence to a third its size and shoved it in on MCOL without wondering ‘maybe I’ve missed something’... we still don’t know what they removed.