Courtesy Car Claim Form Gladstone’s Defence

Suzy_1

Hi I hope you can help me. I didn’t want to open a new discussion and waste anyone’s time but I’m unable to find any related defence template for my situation. 

I had a new job probation period of one month in 2019-which in the end didn’t accept the job offer; where I was told I could park behind the business-residential car park with a gate. I was told that the some spots are dedicated for employees and I could park there. Apparently there was a verbal agreement  between the landowner and the business owner. I was provided with the gate code to access the site. 

I had an accident with my car so I’ve used a courtesy/hire car for few days. 

I have now received a claim form both for mine and curtesy car. 

Thanks to you and this forum I’ve managed to draft my defence for my car but I can’t seem to find much for the lease car. 

I have paid the £35 to enterprise for the admin fee for the parking charge at the time but don’t remember receiving anything else at the time. 

I took few weeks reading every post and sent my defence for my car but need help with this one for the courtesy car. 

Please please help me I have few days left to file my defence. 

Thank you for this Forum and your help. 

D_P_Dance

Have you read the newbies?  Haveyou complained to your MP?  Have you read this,   (page 9 et seq)?

https://www.bvrla.co.uk/uploads/assets/uploaded/61b3298b-a918-499b-9ac8b8bea2b726a0.pdf

Suzy_1

I have read the newbies and that helped with my own car. But apart from what to do for the first appeal stage which have already passed I couldn’t find a template to suit my circumstances. It passed the stage where I can appeal the parking charge. I have a claim form and I need to write a defence. I have not received anything from them by the way only debt collection letters. No recollection of receiving any NTH or NTK. 

KeithP

It's not clear from your post... do you have one or two Claim Forms?

What is/are the Issue Date(s) on your County Court Claim Form(s)?

Suzy_1

I’ve already filed my defence for my car. No issues there I’ve used the newbie thread thanks to you experts here. 

They’re both dated 08/09/21. I’ve acknowledged it last week now I only have few days to send my defence. 

Thank you 

KeithP

Suzy_1 said:

I’ve already filed my defence for my car. No issues there I’ve used the newbie thread thanks to you experts here. 

They’re both dated 08/09/21. I’ve acknowledged it last week now I only have few days to send my defence. 

Thank you 

OK, so you have two County Court Claims - one for your car and one for a hired car.

To avoid confusion, you may want to have a separate threads for each claim.

For the hired car... when exactly last week did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Assuming you filed an AoS on or before Monday 27th September, you have until 4pm on Monday 11th October 2021 to file your Defence.

As you say, not long now but 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'.

Suzy_1

KeithP said:

Suzy_1 said:

I’ve already filed my defence for my car. No issues there I’ve used the newbie thread thanks to you experts here. 

They’re both dated 08/09/21. I’ve acknowledged it last week now I only have few days to send my defence. 

Thank you 

OK, so you have two County Court Claims - one for your car and one for a hired car.

To avoid confusion, you may want to have a separate threads for each claim.

For the hired car... when exactly last week did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Assuming you filed an AoS on or before Monday 27th September, you have until 4pm on Monday 11th October 2021 to file your Defence.

As you say, not long now but 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'.

Thanks Keith. I’ll keep this thread for the lease car then. 

Luckily AoS is done online on 27th and SAR Request is sent yesterday. 

I’m working on my defence but there are less examples that match my circumstances for the lease car. 

I’ve prepared one out desperation but I don’t know if it’s ok. Could someone have a look at it let me know if it’s ok or I need to make any changes please?
Thanks

Suzy_1

Shall post my defence here or PM someone who’s willing to take a look at it?

Coupon-mad

Show it here as few of us have time for or take pm's. 

It shouldn't be hugely different from your other one on the facts, but should mention Henderson v Henderson and 'cause of action estoppel' as clearly they can see you are the same data subject, same name and address and location of alleged breach (just different car).

That doesn't make it OK for them to split this into two claims issued on the same day, which is an abuse.

Suzy_1

Coupon-mad said:

Show it here as few of us have time for or take pm's. 

It shouldn't be hugely different from your other one on the facts, but should mention Henderson v Henderson and 'cause of action estoppel' as clearly they can see you are the same data subject, same name and address and location of alleged breach (just different car).

That doesn't make it OK for them to split this into two claims issued on the same day, which is an abuse.

I will read up on Henderson case and include it but this is what I’ve done so far. 

IN THE COUNTY COURT

 

CLAIM No: XXXXXXXXXXX

 

BETWEEN:

 

UK CAR PARK MANAGEMENT LIMITED (Claimant)

 

-and-

 

XXXXXXXXXXXXXXXXXX (Defendant)

____________________

DEFENCE

____________________

 

1. ​The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars. SAR Document has been requested but no reply from the Claimant yet.

 

2.       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 has standing to sue, nor to form contracts in their own name at the location.

 

3.​It is admitted that the Defendant was the registered keeper/hirer of the vehicle in question but liability is denied.

 

4.​The Operator(Claimant) failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('POFA')

 

4.1​In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator(Claimant) must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply.

4.2​The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14.

4.2.1​Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor(Claimant) must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper. The Operator(Claimant) did not provide the defendant with copies of any of these documents, (a), (b) or (c).

4.2.2​As this operator(Claimant) has evidently failed to serve a NTK or NTH, not only have they chosen to flout the strict requirements set out in POFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly the defendant cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

 

5.​The Claimant should be aware that an arrangement was made for employees to park in the gated residential car park behind the business between the Landowner and the business owner (same landowner for both the business and the residential car park), consequently the employees were provided with the gate code. Therefore, the claimed amount is not valid as parking was taking place under this agreement.

 

6.​The vehicle was at all times parked within the correct zones as agreed between the landowner and the business owner and was not informed of any permit to display to deem that no penalty is justified. Further, the Claimant offered nothing of value to the employees, who already had an established and unfettered right to park, thus no consideration can be deemed to have flowed between the parties. No contract existed and even if the Claimant stuck up some of their tawdry small print signs defacing the location at the time, those notices had and still have no legal effect.

 

7.​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.

 

6.​It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim 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 of £85.  

 

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 #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').

 

9.​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, 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

10.       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.  

 

11.       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.

 

12.​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.  

 

13.​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.

 

14.       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.

 

15.​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.

 

16.​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.

 

17.​In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and underacted 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:

18.​(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.

 

19.   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:

 

Suzy_1

Coupon-mad said:

Show it here as few of us have time for or take pm's. 

It shouldn't be hugely different from your other one on the facts, but should mention Henderson v Henderson and 'cause of action estoppel' as clearly they can see you are the same data subject, same name and address and location of alleged breach (just different car).

That doesn't make it OK for them to split this into two claims issued on the same day, which is an abuse.

I’m sorry for the confusion but the Henderson v Henderson don’t apply as I didn’t receive the parking charge on the same day. To make it clear just forget about the claim form for my car. This thread is now just for the hire car and above is the defence I’ve managed to put together thanks to you guys/gals