UKPC PCN County Court Claim - Urgent Defence Statement Help Needed

Jolly_Brother

Hello all,

Firstly, I'd like to say how amazing this forum is for those of us who need help fighting such claims.  I appreciate all the material posted to date to assist in this process.  

I have a County Court Claim which was sent on the 16/08/2021, and therefore the service date being the 21/08/2021.  I have calculated that the 28th day is 17/09/2021 to file a defence statement - does anyone know the exact cutoff?  Would it be 23:59 on the 17/09/2021?  

Additionally, if I cannot find a way of printing, signing and scanning back in, would an electronic signature suffice?

Furthermore, please can someone review the below defence please?

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IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (Defendant)

____________________

DEFENCE

____________________

 

Preliminary:

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.  Additionally, the Defendant avers that the Claimant operated outside of its legal requirements. 

 

The facts as known to the Defendant:

2. It is admitted that at the material times the Defendant was the registered keeper of the vehicle in question, but liability is denied. 

3. The Defendant was a leasehold owner of a property within the development in which the PCN.  This leasehold contract afforded the Defendant the legal right to enjoy the space and allowing unfettered access to the site by vehicle and freedom to park in allocated parking bays without obstruction.  The Defendant denies accepting any contract with the Claimant.  The Claimant has no right or legal standing to assume that their presence within the development boundaries can nullify a pre-existing leasehold contract.  The Claimant has no right to harass the Defendant with demands for payment and threats of legal action. 

 

Authority to Park and Primacy of Contract:
4. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above-mentioned vehicle to be parked by the leaseholder of [address], whose leasehold contract permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.  The lease terms provide the right to park a vehicle in the relevant allocated bays, without limitation as to the ownership of vehicle, the user of the vehicle or the requirement to register the vehicle or display a parking permit.  The Defendant’s leasehold contract proceeded the Claimant’s date of operation.  A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given. 

5. The Defendant avers that the Claimant’s signs cannot

(i) override the existing rights enjoyed by residents and their visitors and

(ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.  The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.  The Court will be referred to further similar fact cases in the event that this matter proceeds to trial. 

6. Accordingly, it is denied that:

6.1. there was any agreement between the Defendant or driver of the vehicle and the Claimant

6.2. there was any obligation (at all) to register the vehicle and/or display a permit

6.3. the Claimant is owed monies in line with the referenced or any other PCN; and

6.4. the Claimant has suffered loss or damage

6.5. the Claimant has any lawful basis to pursue a claim against the Defendant. 

 

Alternative Defence - Abuse of process:

7. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.

7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.

7.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;

7.1.2. The signage did not comply with the requirements of the Code of Practice of the British Parking Association Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and

7.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3

7.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

8. 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.

9. 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.

10. 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.  

11. 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').

12. 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:

13. 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.  

14. 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.

15. 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.  

16. 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.

17. 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.

18. 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);

(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

(iii) 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.

19. 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.

Jolly_Brother

...continued...

20. 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:

21. The Defendant seeks:

(i) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(ii) 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.

22. The Defendant invites the court to find that this baseless claim and its exaggerated sum is entirely without merit and to dismiss the claim in its entirety.   

 

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:

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Many thanks.

 

Fruitcake

I believe the cut off time for filing a defence is 4pm, which is the end of the working day. It may be earlier on a Friday. I suggest you try to get it done today in case there are any problems with the site.
Remember, you email the defence. It does NOT go in the MCOL defence box.

Abuse of process is not a defence of the core terms, nor is it an alternative defence. It should be included as it is an attempt at double recovery to stop the claimant from adding fake debt collection amounts that have not actually been incurred.
This is already included in the template defence. Please only show us the parts of the template you have changed. 

Redx

4pm tomorrow , if tomorrow is the last day , 33 days from the issue date

An electronic signature is perfectly acceptable , added to the defence pdf

No evidence or exhibits are submitted with the Defence

The template already covers double recovery

Just show us the Adapted paragraphs , not the rest of the template defence by coupon mad , it's your homework being checked , not hers

Coupon-mad

What date did you do the acknowledgement online?

Yes you can add an electronic signature but make the defence an attached document not the body of the email of course.

7.1 says ‘his/her’ which makes no sense because it’s one or the other, or ‘their’.  That draft was written as a guide where the writer couldn’t assume the gender of the D but if a D then uses that draft, they do know their gender and need to edit, to make it make sense.

The heading about abuse of process needs to be removed because the paragraphs below it talk about signage and because there hasn’t been an abuse of process.

Apart from that, good amalgamation of the residential defence wording into the template defence. 

KeithP

I have a County Court Claim which was sent on the 16/08/2021, and therefore the service date being the 21/08/2021.  I have calculated that the 28th day is 17/09/2021 to file a defence statement - does anyone know the exact cutoff?  Would it be 23:59 on the 17/09/2021?  

You have more time than you think, but only if you filed an Acknowledgment of Service sometime between 21st August and 6th September. Did you do that? Please confirm.

21st August plus 28 days = 18th September.

A Defence filing deadline is never on a weekend - you are allowed until 4pm on the next working day.

With a Claim Issue Date of 16th August, and assuming an Acknowledgment of Service was filed in a timely manner, you have until 4pm on Monday 20th September 2021 to file your Defence.

Plenty of time to produce a Defence.

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.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

1505grandad

IF NOT YET FILED

Pedantic query:-

Para 3  -  "The Defendant was a leasehold owner of a property within the development in which the PCN. "

Is there an ending missing?

Pare 4  -  "The Defendant’s leasehold contract (proceeded) the Claimant’s date of operation."

Should (this) be preceded?

Jolly_Brother

Thank you all for the responses. 

 

I completed the acknowledgement of service on the 21st August.  The 33rd day from date of the claim letter would put the 28th day as the 17th Sept, as August has 31 days. 

 

Noted re electronic signature – good to hear. 

 

Paragraph 7.1 amended:

“7.1. The Defendant avers that the parking signage in this matter was, without prejudice to his primary defence above, inadequate.”

 

“Abuse of process” heading removed.  ‘Inadequate signage’ inserted in its place. 

 

Paragraph 3 – yes, ending missing.  Amendment as follows: “3. The Defendant was a leasehold owner of a property within the development in which the PCN was issued.” 

 

Paragraph 4 – yes it should be preceded, not proceeded…well caught. 

 

Is it worth me adding an additional heading immediately before paragraph 8 titled something similar to “Alternative defence – Attempt at double recovery”? Or should I remove both alternative defence headings altogether?

Can I just confirm, is the correct email address for defence statements 'ccbcaq@justice.gov.uk'?  I've noticed several recent posts relating to issues when emailing the defence across.  

 

Thank you all for your help in this. 

KeithP

Jolly_Brother said:

I completed the acknowledgement of service on the 21st August.  The 33rd day from date of the claim letter would put the 28th day as the 17th Sept, as August has 31 days.  

OK, AoS done on a Saturday, five days after the Issue Date.

Therefore the AoS was accepted on the Monday - clearly within the dates I mentioned earlier.

There are two ways of calculating the Defence filing deadline in this instance, but both give the same answer.

1) We know that a Claim is deemed served five days after issue, therefore the date of Service of the Claim could be seen at Saturday 21st August. But as nothing is deemed served on a Saturday (or Sunday or Bank Holiday), the Date of Service becomes Monday 23rd August. Twenty eight days, i.e. four complete weeks, from that Date of Service will also be a Monday - 20th September.

2) Alternatively, as the AoS was filed in a timely manner, we can just add thirty three days to the Issue Date of 16th August. That again gives us a date of Saturday 18th September. As before, if a deadline falls on a Saturday, Sunday or Bank Holiday, one is allowed until 4pm on the next working day to file a Defence.

D_P_Dance

Have you complained to your MP?

Jolly_Brother

KeithP said:

Jolly_Brother said:

I completed the acknowledgement of service on the 21st August.  The 33rd day from date of the claim letter would put the 28th day as the 17th Sept, as August has 31 days.  

OK, AoS done on a Saturday, five days after the Issue Date.

Therefore the AoS was accepted on the Monday - clearly within the dates I mentioned earlier.

There are two ways of calculating the Defence filing deadline in this instance, but both give the same answer.

1) We know that a Claim is deemed served five days after issue, therefore the date of Service of the Claim could be seen at Saturday 21st August. But as nothing is deemed served on a Saturday (or Sunday or Bank Holiday), the Date of Service becomes Monday 23rd August. Twenty eight days, i.e. four complete weeks, from that Date of Service will also be a Monday - 20th September.

2) Alternatively, as the AoS was filed in a timely manner, we can just add thirty three days to the Issue Date of 16th August. That again gives us a date of Saturday 18th September. As before, if a deadline falls on a Saturday, Sunday or Bank Holiday, one is allowed until 4pm on the next working day to file a Defence.

Ah ok, thanks. I don’t recall reading this on any of the claim forms…do they just expect the average person to know this?