Parking fine at my own residential estate

Jenni_D

And browsers have supported multiple tabs for many years now, so it is easy to have the NEWBIES open and several other claim threads open at the same time.  

D_P_Dance

Have you read these

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading/p1

https://forums.landlordzone.co.uk/forum/residential-letting-questions/1053920-private-parking-companies

have you complained to your MP?

tom_hungston

Redx said:

Your 2 and 3 above are not the paragraphs 2 and 3 in the template defence by coupon mad

2 is about keeper or driver , with liability denied

3 is a concise paragraph or a few paragraphs outlining one or more defence topics and a concise background to assist a judge

Read a dozen other court claim threads from this year only

Here is my Defence statement that I'll submit on MoneyClaim as well as the email address given in the post.
Please let me know if I should add or remove anything at this point.

Many many many thanks in advance for all your help and support guys.

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Countrywide Parking Management Limited 

(Claimant) 

- and -  

Defendant’s name 

(Defendant)

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 vehicle, registration XXXX XXX, of which the defendant is the registered keeper, was parked on the material date in a parking bay that is marked to be used by Visitor OR Disabled of the residential estate. The defendant's vehicle was parked on the material date, whilst the Defendant's allocated parking bay was being used by an unknown vehicle, which was reported to Countrywide parking management and were informed that the 

Defendant's car was parked in the bay that is marked as visitors or disabled drivers until the reported vehicle is gone from the defendant's allocated parking bay.

4. Upon receiving a PCN on the windscreen, defendant's partner spoke with the staff ( named Georgia) Countrywide Parking Management Limited and explained that they have issued ticket to defendant's vehicle instead of the vehicle that was parked in defendant's allocated parking space, and we were told that Parking charge notice will be cancelled. However shortly after we started receiving threatening letters from debt recovery agencies. We again spoke to Countrywide Parking Management Limited and we were told to ignore it because its "automated process" and it will eventually stop and its nothing to worry about.

     Should I include the following or not..? as the visitor parking bay/disable parking bay doesn't have any signage informing who
    can and who can't use those parking bays. I have taken photographs of the said parking bay.

5 The terms of the Claimants signage are not clear on the use of the Visitor Parking bays, moreover the signage are in such a position away from visitor parking bay in question, approximately over seven feet high that anyone attempting to read the tiny font would need to stand directly in front of the sign to have any chance of reading it. It is therefore, denied that the Claimants signage is capable of creating a legally binding contract.

 

6. The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action AND OR for the claim having no realistic prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.

Signed XXXXX XXXXXXX

Date: 09 September 2021

tom_hungston

Should I include a line to say that I can provide lease agreement to prove that I'm a resident of the block...?
or that would be required for court hearing...?

Umkomaas

Your 'Statement of Truth' was superseded by a revised version around 18 months ago ..... which suggests you've also used an 'old' defence. 

@Coupon-mad has provided a template defence in which all you need to do is to provide your own bits and pieces for paras 2 and 3, the rest is done for you. 

The template thread is one of the five 'Announcements' permanently pinned to the top of the forum thread list.  

Coupon-mad

You won’t be submitting anything on MCOL ‘as well as’ by email!

KeithP

tom_hungston said:

Here is my Defence statement that I'll submit on MoneyClaim as well as the email address given in the post.

I'm really disappointed to read that.

Where, in any of the guidance you have read, does it say anything about filing a Defence via the MCOL website?

The guidance is complete.

I'm sorry it doesn't list all the things you don't do - that would be a very long list.

Yesterday evening 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.

Look around. See what's going on.

Fruitcake

What does your lease/AST say about parking, allocated parking spaces, PCNs, PPCs, and court claims?
What does it say about visitor parking bays and who is permitted to use them?

What it doesn't say is just as important.

Your defence reads more like a witness statement.

If the driver couldn't park in their/your allocated space then there was a frustration of contract.

A verbal contract was made with the PPC when the PPC's representative stated that the PCN would be cancelled. There was an offer, consideration, and acceptance which are the three main elements of a contract. The PPC then breached this verbal contract by failing to cancel the PCN.

tom_hungston

Hello everyone,

I have submitted following 

Please let me know if I should add anything or not.
Once again massive thanks for all who helped me and thousands others like me on this forum.


===============================================================================================

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Countrywide Parking Management Ltd

(Claimant) 

- and -  

Ms XXXXXX  XXXXXXXXXXXX

(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 vehicle, registration XXXX XXX, of which the defendant is the registered keeper, was parked on the material date in a parking bay that is marked to be used by Visitor / Disabled drivers of the residential estate. The defendant's vehicle was parked on the material date, whilst the Defendant's allocated parking bay was being used by an unknown vehicle, which was reported to Countrywide parking management and were informed that the Defendant's car was parked in the bay that is marked as visitors/disabled drivers until the reported vehicle is gone from the defendant's allocated parking bay.

         Upon receiving a PCN on the windscreen, defendant's partner rang Countrywide Parking Management Limited and spoke with a lady and explained that they have issued ticket to defendant's vehicle instead of the vehicle that was parked in defendant's allocated parking space, and we were told that Parking charge notice will be cancelled. However shortly after we started receiving threatening letters from debt recovery agencies. My partner again spoke to Countrywide Parking Management Limited about this and were told to ignore it because its "automated process" and it will eventually stop and there is nothing to worry about.

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: 09/09/2021

tom_hungston

Regarding SAR request, PPC is not accepting court document as a proof of id and insisting that we should supply either driving licence or passport copy.

Should I go ahead and supply it to PPC by email...?