UKPC CCJ - URGENT HELP NEEDED FOR RESIDENTIAL CAR PARK - FINAL DEFENCE NEEDS PROOF READING PLEASE

Albie234

1505grandad said:

"3. Within the appeal case of Jopson vs Homeguard - (case no. 9GF0A9E Judge HARRIS) Para 19 - it states the definition of whether a car is parked or loading/unloading which applies to the defendants case. 

 

‘Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree.’

‘I am quite satisfied, and I find as a fact, .............."

You state para 19 as being quoted from, but they are from para 21  -  per Parking Prankster case law:-

http://nebula.wsimg.com/f6d657adf7df70d27e1dd285688b5701?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

"21 Whether a car is parked, or simply stopped,..............."

Thank you, excellent spot, all changed.

Albie234

Im going to be sending this off today as final day for it to be in is tomorrow - is there is anything else you think I should change or add? or do you think this defence is good enough?

Albie234

Hey, can I just run this by someone to be correct before I send it off (numbers and spellings etc) Thanks!




IN THE COUNTY COURT
Claim No.: 
Between
UK PARKING CONTROL LIMITED
(Claimant) 
- and -  
                      
 (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.

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question, but liability is denied.

3. The particulars state 'The Defendant was driving the vehicle and/or is the keeper of the vehicle' which indicates that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.

4. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on a total of 19 dates, however, 3 dates ‘10/03/2016, 19/03/2016 and 01/04/2016’ are duplicated.

5. The Defendant avers that they were, on most or all occasions, likely to have been merely assisting relatives to board or alight because they were blind and had major double organ transplant surgery affecting their physical and mental health.  This means they met the definition of disability and they and their carers (both protected by the Equality Act 2010) were entitled to the reasonable adjustment of setting down a disabled person including assisted boarding/alighting to/from the flat.  As their carer, transporting them around, it is eminently reasonable for the Defendant to expect time to pick up or set down a disabled person, just as a taxi driver would, without penalty.

6. It is the Defendant's position that this amounts to serial predatory ticketing of residents and their visitors/carers.  The Claimant is put to strict proof of each parking event in terms of allowing a fair consideration period and should provide a witness statement from that person.

7. There is no evidence of the vehicle being left parked and, whilst the Defendant recalls that they did go indoors, it is too long ago to be sure which claimed events may have been parking, as opposed to setting down of the Claimant's disabled relative.

8. The burden lies with the Claimant who has failed to establish the facts or cause of action and has even duplicated dates in their particulars.  Further, the Claimant has added the BPA's capped £70 for the purported letters/admin they call 'debt recovery' (which is disputed because a parking charge covers the letter chain to keepers) nineteen times, inflating their claim by almost £1400.  This smacks of abusive and unreasonable conduct, being clear double recovery.

9. Within the appeal case of Jopson vs Homeguard - (case no. 9GF0A9E Judge HARRIS) Para 21 - it states the definition of whether a car is parked or loading/unloading which applies to the defendants case. 

 ‘Whether a car is parked, or simply stopped, or left for a moment while unloading, or (to take an example discussed in argument) accompanying a frail person inside, must be a question of fact or degree.’

‘I am quite satisfied, and I find as a fact, that while the appellant’s car had been stationary for more than a minute and without its driver for the same period (whatever precisely it was), while she carried it in her desk, it was not “parked”. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.’

 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 #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').

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.

 

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

15.       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.  

16.       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.

17.   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.  

18.   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.

19.       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.

20.   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.

21.   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.

 

22.  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:

23.   (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.

24.   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: 11/10/2021

tboo

Albie234 said:

4. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 19 a total of dates, however, 3 dates ‘10/03/2016, 19/03/2016 and 01/04/2016’ are duplicated.

Is this correctly worded?

Albie234

tboo said:

Albie234 said:

4. The Particulars of Claim on the N1 Claim Form refer to 'Parking Charge(s)' incurred on 19 a total of dates, however, 3 dates ‘10/03/2016, 19/03/2016 and 01/04/2016’ are duplicated.

Is this correctly worded?

nope, will amend now, thanks 

Albie234

@Le_Kirk

Do you think this is fine to send off today?

Thanks

Coupon-mad

Looks fine!

Albie234

Coupon-mad said:

Looks fine!

Thanks, will send off now!

Albie234

Albie234 said:

Coupon-mad said:

Looks fine!

Thanks, will send off now!

@Coupon-mad

I just received the SAR back, they have pictures but say they are legally pursuing me for 27 tickets all in legal action not 19 which is on the claim form - does this affect anything ?

Coupon-mad

Not really.  Just means they have a further eight currently dormant and if they didn't include them in the claim, they can't claim them.