Courtesy Car Claim Form Gladstone’s Defence

Suzy_1

Sorry the link doesn't work but I will update it if you think I should send it

Suzy_1

Jenni_D said:

Suzy_1 said:

Also is it ok to say that the hire car was driven by family members as it was a hire car I’m not sure if the T&C restricts anyone else to drive but the hirer? Thanks 

The hire T&Cs will specify who is entitled to drive the vehicle ... usually only the hirer. Whether that restricts anyone else from driving it I'm not sure.

I've now taken it off Thanks. But I will triple check the T&C. I wonder if includes or makes a difference when it's a VALET that parks the cars?? 

Le_Kirk

Suzy_1 said:

2. The Defendant was the hirer of the vehicle in question but liability is denied and it is noted that although the Claimant knows I the defendant was named as the Hirer, their particulars have failed to plead 'hirer liability' under the provisions of the Protection of Freedoms Act 2012 (Schedule 4).  No doubt because it is a template robo-claim run by a firm of solicitors with cut and paste particulars about registered keepers and because the Claimant will be well aware that they failed to comply and liability was never properly transferred from the registered keeper hire firm, given this Claimant's omissions and inability to follow the steps in the applicable law.

One change as above

Redx

If the claimant has failed to comply with POFA then they will assume that the hirer was the driver , more than by 50% and prove it , or fail , anyone could be the driver , including a valet or chauffeur , or possibly me or KeithP or coupon mad , if our own insurance policies allowed it. Definitely a police traffic officer of garage mechanic etc

So UK CPM must have the correct defendant in the dock , meaning the driver , or fail !!

So they may ask you if you were the driver , as might a judge , so the truthful answers are

Yes

Definitely not
I cannot recollect if it was me or the valet parking or the delivery driver ( if it was dropped off at work )

If you are deemed to have been the driver , the case can proceed onto promissory estoppel , authorised to park , a mistake due to having a courtesy vehicle for a few days only , a trivial matter , no harm done , no costs or damages , etc

Read the recent posts by member Bargepole about Keeper or driver liability etc

Suzy_1

Redx said:

If the claimant has failed to comply with POFA then they will assume that the hirer was the driver , more than by 50% and prove it , or fail , anyone could be the driver , including a valet or chauffeur , or possibly me or KeithP or coupon mad , if our own insurance policies allowed it. Definitely a police traffic officer of garage mechanic etc

So UK CPM must have the correct defendant in the dock , meaning the driver , or fail !!

So they may ask you if you were the driver , as might a judge , so the truthful answers are

Yes

Definitely not
I cannot recollect if it was me or the valet parking or the delivery driver ( if it was dropped off at work )

If you are deemed to have been the driver , the case can proceed onto promissory estoppel , authorised to park , a mistake due to having a courtesy vehicle for a few days only , a trivial matter , no harm done , no costs or damages , etc

Read the recent posts by member Bargepole about Keeper or driver liability etc

I think "I cannot recollect if it was me or the valet parking " but do you think promissory estoppel is better as it was only for few days?

Jenni_D

"In the alternative ........."

No reason to not use both avenues, surely?

Suzy_1

Thanks Jenni. So I’ll save that for the witness statement? Or shall I put it my defence? How do I word it?

Jenni_D said:

"In the alternative ........."

No reason to not use both avenues, surely?

Redx

Suzy_1 said:

Thanks Jenni. So I’ll save that for the witness statement? Or shall I put it my defence? How do I word it?

Jenni_D said:

"In the alternative ........."

No reason to not use both avenues, surely?

We don't provide the wording , that's a legal service you pay a lawyer for

We provide free opinions and suggestions and useful critique about your own DIY wordings in your thread ( discussion ) about your case ,  with regard to your published proposed paragraphs and wording in your own draft

The coupon mad template is about what she would do , written by her in her own words and published on this forum , with no copyright , for free , done in her own time ( you must use it and do the same with paragraphs 2 and 3 )

Suzy_1

Redx said:

Suzy_1 said:

Thanks Jenni. So I’ll save that for the witness statement? Or shall I put it my defence? How do I word it?

Jenni_D said:

"In the alternative ........."

No reason to not use both avenues, surely?

We don't provide the wording , that's a legal service you pay a lawyer for

We provide free opinions and suggestions and useful critique about your own DIY wordings in your thread ( discussion ) about your case ,  with regard to your published proposed paragraphs and wording in your own draft

The coupon mad template is about what she would do , written by her in her own words and published on this forum , with no copyright , for free , done in her own time ( you must use it and do the same with paragraphs 2 and 3 )

Oh sorry I’ve been replying in between my work therefore maybe quick replies sounded demanding. I do apologise for that. You guys are life savers so I appreciate any advice is given here. If it wasn’t for you I couldn’t have done it. 

I was asking for advice or any example for the promissory estoppel as I’ve not seen it used before in the threads. 

If you can’t it’s ok I’ll carry on digging. All I’m asking now is shall I include this in my defence or leave it to witness statement? 

Thank you so much much appreciated 

Suzy_1

Coupon-mad said:

I'd remove the first point as it doesn't add anything useful.  Judge won't be interested in a SAR either.

You could always remove the phrase I suggested that is in brackets.

This is my updated defence. Could I kindly ask someone to check and let me know if it's ok to send?

UK CAR PARK MANAGEMENT LIMITED (Claimant)

 

-and-

 

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

 

2. The Defendant was the hirer of the vehicle in question but liability is denied and it is noted that although the Claimant knows the defendant was named as the Hirer, their particulars have failed to plead 'hirer liability' under the provisions of the Protection of Freedoms Act 2012 (Schedule 4).  No doubt because it is a template robo-claim run by a firm of solicitors with cut and paste particulars about registered keepers and because the Claimant will be well aware that they failed to comply and liability was never properly transferred from the registered keeper hire firm, given this Claimant's omissions and inability to follow the steps in the applicable law.

 

3. 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. 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.

 

4.1 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.

 

4.1.1 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).

4.1.2 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:

 

Thanking you... xx