Defence - District Enforcement

farthingdownswalker

D_P_Dance said:

Have you complained to your MP?

I have not complained to the MP. Would that aid my case?

D_P_Dance

Perhaps, perhaps not/

Coupon-mad

You need to add a paragraph that the D believes that the C is acting without lawful authority at this location, which is owned by xxxxxxxx,  a Traffic Authority.  The C will be aware that the Department for Transport and DVLA both condemned the operating of publicly accessible car parks that are under statutory control, 'as if they were private land' which is not allowed and DVLA data should not have been accessed by the C.  Authorities cannot opt out of the applicable Traffic Management Act.  Further, ANPR was prohibited for use in such car parks as part of the Deregulation Act 2015.  Even if the C produces an agreement with the authority, it is averred that this is an illegal operation and a formal complaint has been raised with xxxxxxx.

Redx

And change 2 to , keeper and driver , one sentence , not 2 , keep things concise and to the point

Redx

farthingdownswalker said:

D_P_Dance said:

Have you complained to your MP?

I have not complained to the MP. Would that aid my case?

Depends on who it is , what they know about private parking and legal issues etc , plus if they are interested in what the Mhclg is doing about it , perhaps lobbying Michael Gove MP or one of his appointees !! If it was Sir Greg Knight MP or Rishi Sunak MP or one of over a hundred who wanted change when discussing it in parliament or committee meetings when it was being discussed for the 2019 Parking Bill by Sir Greg Knight MP , then who knows ??  You would know better than us because it's your MP for your own constituency , plus if you don't ask , you don't get !

farthingdownswalker

Thanks everyone for your continued guidance.

I have now received another response from City of London, saying their position is unchanged and response is final.

So on with the defence, not sure if I should remove further paragraphs from the template due to the fact that I saw no signage at all so can't be sure how accurate their notices were with regard to additional charges. Could someone please advise. I added para 4 as advised above (thank you), amended new para 13, removed para 16 and amended the new 15 below.

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 and the driver of the vehicle in question but liability is denied. 

3.           The Defendant has been parking in this car park for many years and walking their dog. The car park has always been free, the entry barrier always open. The Defendant did not see any noticeable signage to inform them of the change in the way the car park was to be used. The barrier was open as usual. If there was new signage, this was not made apparent to the Defendant who has habitually used the car park previously. Failure to add prominent signage when new restrictions are introduced, in order to particularly alert local drivers familiar with the free car park, breached the IPC Code of Practice and the Consumer Rights Act 2015.

4.           The Defendant believes that the Claimant is acting without lawful authority at this location, which is owned by City of London Corporation, a Traffic Authority.  The Claimant will be aware that the Department for Transport and DVLA both condemned the operating of publicly accessible car parks that are under statutory control, 'as if they were private land' which is not allowed and DVLA data should not have been accessed by the Claimant.  Authorities cannot opt out of the applicable Traffic Management Act.  Further, ANPR was prohibited for use in such car parks as part of the Deregulation Act 2015.  Even if the Claimant produces an agreement with the authority, it is averred that this is an illegal operation and a formal complaint has been raised with City of London Corporation.

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 absence of prominent signage, 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.  

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 #6 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.           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.       Whether the Claimant’s notices have any terms or not, they were not brought to the Defendant’s attention. 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:

Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

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 prominent and the Beavis case is fully distinguished.

16.       In the matter of costs, the Defendant seeks:

(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.

17.       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.

Coupon-mad

What's the paragraph you removed?  Never remove a paragraph alleging unclear signs, this is a legal hoop they have to jump through and you don't have to know what the signs even looked like.  It's not your burden, it's theirs but only if you make it so.

The template rarely sees paragraphs removed.

So, now you have your final reply from the City of London, your defence can add:

 Even if the Claimant produces an agreement with the authority, it is averred that this is an illegal operation and a formal complaint has been raised with City of London Corporation, who the Defendant has now reported (October 2021) to the Local Government Ombudsman about this specific matter.

farthingdownswalker

Coupon-mad said:

What's the paragraph you removed?  Never remove a paragraph alleging unclear signs, this is a legal hoop they have to jump through and you don't have to know what the signs even looked like.  It's not your burden, it's theirs but only if you make it so.

The template rarely sees paragraphs removed.

So, now you have your final reply from the City of London, your defence can add:

 Even if the Claimant produces an agreement with the authority, it is averred that this is an illegal operation and a formal complaint has been raised with City of London Corporation, who the Defendant has now reported (October 2021) to the Local Government Ombudsman about this specific matter.

Many thanks

I removed the paragraph below:

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.

Coupon-mad

I think I'd keep it in but bring it up higher, under the new paragraph ending I wrote for you above, as the next paragraph as it seems to make sense just after talking about the City of London Corporation.

farthingdownswalker

All done, filed the complaint with the LGO and emailed the defence over. Hopefully a bit of a break now before anything else is due..