DCB Legal & UKPC - Remnant PCN

IndigoMondayToyota

Coupon-mad said:

Nope because they were never accrued and UKPC paid no such fees.

The template defence shows how to word it.

Thank you CM.

I can see it's already mentioned on point #6 from the template / #12 on mine - so have removed it.

Thanks,

IMT

Coupon-mad

You could have bern fetching a visitor permit from a neighbour who doesn't use theirs.  The point is, not enough grace period was given to fetch a permit from a flat and return with it, let alone read the signs and 'agree' (by leaving the vehicle parked for a length of time) to pay £100 instead.

IndigoMondayToyota

That’s clarified things - thanks CM.

I’ll be submitting the second draft later tonight, taking onboard everyones feedback and suggestions.

Thanks, and have a wonderful evening.
IMT

IndigoMondayToyota

Good evening all,

As promised, please find below the second draft of my defence:

_____________________________________________________________________________________

UK PARKING CONTROL LIMITED

(Claimant)

- and -

INDIGOMONDAYTOYOTA

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

3.       The signage displayed only makes an offer of parking to permit holders, and therefore only permit holders can be bound by the contractual terms conveyed.

4.       It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. UK Parking Control cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to UKPC.

5.       Accordingly, the Claimant is put to strict proof the additional fees and costs added to the value shown on signages for the £90/£100 charges was ever in fact incurred for the PCN, at all.

6.       UK Parking Control are not the lawful occupier of the land.

(i)       UKPC is not the lawful occupier of the land.

(ii)       absent contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

7.       The signage at the location shows two different sums - £90 in one place, £100 in another - so it would be impossible to assume which sign (if any) the driver(s) of the vehicle on each occasion saw, or did not see. Each sign is pale, unlit, unremarkable and placed so high that the £90/£100 charge among the wordy small print is incapable of being read, cannot form a contract and is ambiguous due to the sum differing. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

8.       The signage on the site in question was unlit, unclear, miniscule and was not prominent on site/around those bays at the time the PCN was issued so no contract has been formed with driver(s) to pay £90/£100, or any additional fee charged if unpaid in 14 days.

9.       The Defendant was not provided sufficient and adequate timing for reading the signage, as well as obtaining and displaying a valid permit which breaches the mandatory British Parking Association's Code of Practice regarding fair grace periods.

10.       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.

11.       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.

12.       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.  

13.       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 #11 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').

14.       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.

15.       It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.

16.       The Claimant is put to strict proof that none of the photos taken of the vehicle at the time the PCN was issued were not similarly altered.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

17.       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.  

18.       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.

19.       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.  

20.       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.

21.       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.

22.       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.

23.       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.

24.       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:

25.        (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.

26.       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: IndigoMondayToyota

Date: Also Today

_____________________________________________________________________________________

Thanks,

IMT

Coupon-mad

Looks good.

Typo here that's a common error:

miniscule 

IndigoMondayToyota

NOOO!!! I hate myself for not spotting that.  

I’ve corrected it now on my side, so thanks CM!

Do I need any statements/points below, similar to Johnersh’s Residential Defence:

X. It is admitted that at all material times the Defendant was the registered keeper of vehicle registration mark AB12 XYZ which is the subject of these proceedings.

X. It is admitted that on [DATE] the Defendant's vehicle was parked at [LOCATION]

Thanks,
IMT

Coupon-mad

Nope because #2 already covers it.

IndigoMondayToyota

Thanks CM, sorry I meant amend it to the above to be more specific as “facts as known to the Defendant”.

But if you say it isn’t needed, then it shall be canned.

Also, I’d like to get a 2nd, 3rd or n’th opinion if possible?

I welcome any, and all feedback 

Thanking you folks in advance,
IMT

Redx

Looks good to me , save any explanations for the witness statement plus exhibits plus summary costs assessment in a few months time !

Le_Kirk

You started paragraph (5) with "Accordingly" but there is nothing before it to suggest to what you are referring.  Also the additional spurious debt management/admin fees are discussed further down, would it not make sense to keep it all together?  Paragraphs 4 & 6 seem to be saying the same thing. i.e. duplication.