County Claim - One Parking Solution - Advice needed urgently!

bloodyparkers

Hello freedom fighters!

I found this wonderful forum while investigating a spurious parking charge that had progressed to county claim. I followed some of the advice and lodged an Acknowledgement of Service and I'm just about to submit defence but have noticed I might have missed the deadline already...arg!

My Issue date was 12th August, so I calculate Date of Service as 17th August. My acknowledgment of service was 20th August and I calculate deadline for defence as 14th Sep, 28 days from Service Date - is this right? Would any defence be ignored anyway? I intend to send one today anyway and hopefully it will still be considered.

If I'm wasting my time - and yours, reading this - let me know!

Reading the advice re: not using the moneyclaim.co.uk site, I have a draft based on the template:

[link removed as can't post - will post text]

Some interesting points:
- I was not the driver but my partner did take photos and explain the problems with the car park and signage
- She was not familiar with the area and this was the first time she'd parked there
- There are a couple of signs, one too low to see from the car which has very small font;  one too high, also with small font and hard to see in comparison to the 3 other non-parking signs beside it, all with larger fonts
- This was a public park where the council had authorised a private company to administer the car parking
- I never acknowledged the letters and things extended a bit with moving home and the vehicle in question being scrapped
- The council no longers runs the same parking solution/charges on the site, perhaps in relation to numerous complaints/challenges

Really looking for some feedback on my draft and some specific questions - apologies for the tight timeframe:

1. Am I wasting time even submitting a defence since I'm over 28 days from Service Date?
2. Am I ok to send by email and ignore the online Defence Particulars? (I think so based on advice...)
3. Should I include facts from the driver/witness or not?
4. Would digital signatures be accepted or is the "print, sign and scan" option still recommended/required?
5. Are there any particular facts from my case that are worth focussing on in defence or next steps?

Many thanks for any advice or tips - really appreciate the work some folk here do to support people against these horrible cash-generating parking machines.

Thanks,

D

bloodyparkers

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 points below are within the scope of the Defendant’s own knowledge and honest belief. Whilst parts of this defence may be familiar to the Claimant and/or their legal representatives, it would not be right for a litigant-in-person to be criticised for using all relevant resources available. It is noted in any case, that these Claimants use third party pre-written templates as standard. This statement was prepared by the Defendant specifically for this matter and unlike the Claimant’s case, it deals properly and individually with the facts, the alleged contract, and the quantum. The contents of this defence represent hours of research by the Defendant, in order to grasp some knowledge of alien concepts of law, codes of practice and procedures relating to the specific area of Parking Charge Notices (‘private PCNs’).

 

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. It is denied that the Defendant was the driver of the vehicle on the day in question.

3.  I first heard about this parking charge by post a week later and then through a succession of various threatening debt recovery letters of dubious origin.

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.

Le_Kirk

If you have missed the deadline, it is ore important to get a defence submitted before the claimant applies for a default CCJ.  Defences are written in the third person and I spotted at least one "I" in there.  You are supposed to put YOUR actual rebuttal of the POC in paragraph 3, you have not.  Get this rebuttal in there and send it a.s.a.p.

bloodyparkers

Thanks - something like this?

3.  The defendant first heard about this parking charge by post a week later and then through a succession of various debt recovery letters of dubious origin and increasingly threatening tone. Through discussion with the driver, the following facts are known to the defendant: the driver was not familiar with the area, the signage was poorly located, hard to spot among a number of other signs, and with a font too small to be legible.

Redx

As above , change I to , the defendant , or , the driver , as appropriate

3 rebuts the POC as mentioned above

Email the signed and dated pdf Defence as an attachment to the ccbcaq email address asap , following the first numbered steps in the defence template by coupon mad , in the first post

Then look at 5 to 10 as what happens next

I hope that you emailed a SAR to the DPO at OPS ??

Was it Stanmer park ?

bloodyparkers

No, not done SAR - is there still time?

Yes, it was! How did you know? Is there any useful precedents/examples related to this?

Redx

Get the defence redrafted and emailed off before the twenty questions , You don't have time to dither

Check for an email auto receipt from the CCBC in your inbox folder or spam folder

Then email the SAR , it's never too late to issue a SAR

That site has come up numerous times on here , coupon mad and parking mad are experts on it , do your research after doing what we said , no slacking , get it done ASAP , then you can have a discussion about Stanmer park at your leisure

bloodyparkers

Thanks - I've taken the use of "I" out and added some facts to 3) (see above) but should I break these down into separate points and expand? As per "The facts of your case must be added as #2 and #3 - add more if you need more, and adjust the numbers below it."

Redx

Correct , but do so quickly , renumber and get it emailed as it's 2 days late already

bloodyparkers

Sent! Thanks all - will keep you posted.

Will request the SAR and even if I miss the deadline at least my example / tardiness might help others.

bloodyparkers

SAR sent too!
No confirmation from CCBCAQ@justice.gov.uk yet - should I try to call or email to confirm receipt?