LBCC - County Court Claim - Enterprise Parking Solutions

happych4ppy

Hi all, I recently received a LBCC for an Enterprise Solutions parking ticket received about a year ago. Initially it was the PCN, followed by debt collection letters, followed by Solicitor letters and now this. I've read through all the newbies forum I'm about to acknowledge the claim. I was hoping someone out there could help proof read and help me to bulletproof my defence statement before I submit...

The only parts I have changed from the standard defence statement template are sections 2 + 3 (highlighted in bold below)

The text that I've written in (brackets) I'm not so sure about (note: I have since looked at the car park on google street view and (according to the microscopic signs) it's one of those places where you're supposed to validate/register parking when you're inside the pub (which I was never in knowledge of, informed/reminded or prompted to do so)

Any and all feedback would be much appreciated. Many thanks in advanced

IN THE COUNTY COURT

 

Claim No.: XXXXXXXX

 

 

Between

 

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

 

(Claimant) 

 

- and -  

 

Defendant’s name from N1 claim

 

 (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 defendant did not see any clear signs upon entering the car park, nor did the defendant see any clear signs while driving into or through the car park, nor while parking in the car park. The defendant did not see any clear signs or ticket machines while leaving the car nor while entering the venue for which the car park serviced. (Whilst inside the venue, the defendant, now a paying customer, was not informed or reminded to pay-and-display or register or validate parking, nor was it made abundantly clear that a parking charge service was in operation. Had the parking charge been clear to the defendant, the defendant would have willingly cooperated and paid for the service.)

 

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

 

(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.

 

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:

Redx

its not an LBCCC , or LBC , OR ANYTHING SIMILAR !!

its an MCOL claim pack from the CCBC in Northampton

please post your ISSUE date below, and the date the AOS was done , if you did it online ?

check your MCOL claim history

and email a SAR to the DPO at Enterprise, attaching a copy of the claim form as proof of I D , if not already done

happych4ppy

Thank you for getting back to me Sorry for the confusion, yes it is from the CCBC in Northampton.

My issue date is: 15th September 2021

AOS was completed online today 29th September 2021 (and the claim is now showing up in my claims history)

I have emailed the SAR to Enterprise (it's been a few days since and not heard anything back yet)

Does my defence statement seem ok? or do I need the SAR evidence before you can comment?

Thanks again

D_P_Dance

Have you complained to your MP?

If this is Smart parking, read this.

Pete Wishart MP said recently in the House of commons about Smart Parking.

"I am sick and tired of receiving emails from people complaining about the behaviour of parking companies, telling me that they will never again visit Perth city centre because of the negative experience they had when they had the misfortune to end up in a car park operated by one of these companies. I have received more complaints about one car park in the city of Perth than about any other issue. That car park is operated by the lone ranger of the parking cowboys: the hated and appalling Smart Parking—I see that many other Members are unfortunate enough to have Smart Parking operating in their constituencies. It has reached the stage where one member of my staff now spends a good part of each day just helping my constituents and visitors to my constituency to navigate the appeals process.

…
The BPA does not have the ability to regulate these companies and has shown no sign whatsoever that it is trying to get on top of some of the sharper practices. The BPA gives a veneer of legitimacy to some of the more outlandish rogue operators by including them in their membership, allowing them to continue to operate. The Bill will oblige operators such as Smart Parking to amend their practices.

KeithP

happych4ppy said:

yes it is from the CCBC in Northampton.

My issue date is: 15th September 2021

AOS was completed online today 29th September 2021 (and the claim is now showing up in my claims history)

With a Claim Issue Date of 15th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 18th October 2021 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

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'.

happych4ppy

KeithP said:

happych4ppy said:

yes it is from the CCBC in Northampton.

My issue date is: 15th September 2021

AOS was completed online today 29th September 2021 (and the claim is now showing up in my claims history)

With a Claim Issue Date of 15th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 18th October 2021 to file your Defence.

That's nearly three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

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'.

Thanks for the info, much appreciated  

I posted my initial defence statement draft in the first post of this thread (using the guidance form Newbies thread)... any change you could give me feedback on sections 2+3? (I'm also assuming I should keep in the rest of the defence template sections 4 through 18 because that breaks down the abuse of process?) 

Thanks again

Le_Kirk

Looks like a solid defence, if it is all true and there weren't signs or they were small or obscured.  Yes, you keep the rest of the defence template when you send it to CBC by e-mail.

happych4ppy

Defence statement sent to CCBCAQ@justice.gov.uk 

so next step is wait to receive my own Directions Questionnaire (N180) from the CCBC? 

Le_Kirk

happych4ppy said:

Defence statement sent to CCBCAQ@justice.gov.uk 

so next step is wait to receive my own Directions Questionnaire (N180) from the CCBC? 

Keep an eye on the MCOL and check your status to see that/when your defence was received.  You should also be able to see when/if the N180 is issued.

happych4ppy

I finally got the SAR back.. Is there anything in particular I should be looking out for? 

In a letter it states "we are not able to provide a payment machine record to you for the day/time in question due to ICO guidance on handling of vehicle registration data by car park operators"

Coupon-mad

Reply and ask for the 'guidance' they are relying upon and how exactly they intend to evidence their case?