Discontinued =) - CP Plus / DCBL

uksniper

Hi, I've received a court claim dated 11 Oct 2021 and I am yet to provide an AOS on MCOL.

The claimant is CP Plus LTD T/A Groupnexus.

Particulars of claim

1. The Defendant(D) is indebted to the Claimant (C) for a Parking Charge(s) issued to the vehicle {My Vehicle Reg} at {Location} {Repeated Location}.

2. The PCN details are XX/XX/2017,{PCN Number},XX/XX/2017,{Repeated PCN Number}
3. The PCN(s) was issued on private lan owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the contract) thus incurring the PCN(s).
4. The driver agreed to pay within 28 days but did not.
5. D is liable as the driver or keeper. Despite requests, the PCN(s) is outstanding. The contract entitles C to damages.
AND THE CLAIMANT CLAIMS

1. £340.00 being the total of the PCN(s) and damages.
2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.04 until judgment or sooner payment.
3. Costs and court fees 

I didn't expect to be back with a claim again so soon but here we are! My vehicle was parked on a service station 4 years ago where there was a 2 hour free parking limit which was exceeded by approximately 45 minutes. The driver was unaware of this parking limit having arrived after nightfall and not seeing any signage denoting such restriction.

Despite the obvious defence of lack of signage on the drivers route which I will be able to demonstrate, I just wanted some thoughts on some other grounds of defence which I'm hopeful may cause a discontinuance at an earlier stage:

1) The claim amount is exaggerated (I appreciate this isn't uncommon), I believe accidentally by an administration error. The vehicle was only at the location on one occasion but the claim form (N1SDT) and the LBC PCN schedule shows the same PCN number has been repeated twice - double recovery.
2) An 'initial debt collection charge' of £40 was added to the £100 which we know is an abuse of process, however the claim amount is £340. I can't work out how this has been calculated from any of their letters as it's not even double the PCN which we know they've done accidentally.
3) The PCN was issued from ANPR footage and the first letter to myself as registered keeper was dated 34 days later falling foul of POFA 9.5.

Thanks in advance

KeithP

uksniper said:

Hi, I've received a court claim dated 11 Oct 2021 and I am yet to provide an AOS on MCOL.

The claimant is CP Plus LTD T/A Groupnexus.

With a Claim Issue Date of 11th October, you have until Monday 1st November to file an Acknowledgment of Service. Do not file an AoS before 16th October, but otherwise there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Monday 15th November 2021 to file your Defence.

That's over four 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 again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that 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'.

Coupon-mad

It would be better if you just use the template defence and add in the same as everyone else has done - see other CP PLUS or HIGHVIEW defences (all the same) and they have already been written and cover the liability issue better than that.  No need to write from scratch.

D_P_Dance

1. £340.00 being the total of the PCN(s) and damages.

They have added what appears to be extra unlawful amounts for debt collection. Judges have dismissed an entire claim because of this. Read this and complain to your MP.

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V%20Excel%20v%20Wilkinson.pdf?dl=0

uksniper

Draft defence below. Should it be updated to include the Excel vs Wilkinson judgement or should that be only included at the WS stage?

Thanks for your time in advance.

____________

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 on the material date but liability is denied.

 

3.       On the material date, the Defendant parked the vehicle on an overflow carpark at the MOTO [HIDDEN] service station approximately 10:30pm in the evening. Upon parking the vehicle, the Defendant did not see any signage along their route that would indicate a maximum parking period was in effect. No less than 35 days later, the Defendant received an invoice from the Claimant requesting payment for the alleged contravention of parking in excess of the free period. It is not possible for such contravention to have occurred as the Claimant did not ensure that the Defendant or any other competent driver would have been made aware such terms were in effect. It is of importance that the route in which the Defendant accessed the overflow carpark was from “[HIDDEN]” via a side entrance rather than directly from the adjacent motorway. The Defendant has since reviewed Google street maps imagery which shows large signage indicating restrictions on parking when entering the service station on its primary route that are absent on entrance via the Defendants route.

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

(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.

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.

Coupon-mad

Not sure why you are admitting to driving, rather than using the POFA wording everyone does in CP Plus and Highview threads I pointed you to search for and copy?  The keeper can't be held liable.

No to Excel v Wlikinson, no need and a recent appeal unpicked that reasoning (that's been discussed to death only this week).

Have you exhausted MOTO's. CEO cancelling this, as happens in all MOTO threads you read?

uksniper

Coupon-mad said:

Not sure why you are admitting to driving, rather than using the POFA wording everyone does in CP Plus and Highview threads I pointed you to search for and copy?  The keeper can't be held liable.

No to Excel v Wlikinson, no need and a recent appeal unpicked that reasoning (that's been discussed to death only this week).

Have you exhausted MOTO's. CEO cancelling this, as happens in all MOTO threads you read?

I opted to admit as without being the driver I wouldn't have known the route and location of where the vehicle would have been parked. There is a huge disparity in signage from the route I actually took and that of your normal road user using the service station.

The POFA will apply in this case but I then considered if it makes to hearing and I am asked by the Judge who was driving I would have to answer honestly.

I made contact with CEO who passed me to the commercial manager who replied "Unfortunately, the only thing I can offer, is to ask CP Plus and DCBL to contact you directly to discuss your appeal.". I didn't exercise that option.

@Coupon-mad Do you still think I should press the POFA route? I'm happy to take the advice just that I'm worried doing this may prevent my account of the actually poor signage which was genuinely not observed by me on my route. Only one sign present on route and would have been subject to the poor lighting as it was dark on arrival.

Coupon-mad

it's a hard call.  The POFA argument is nailed on but not for an admitted driver.  Someone lost a Highview case the other day as the Judge decided he was the driver (even though he provided evidence that he probably wasn't and it was too long ago to know).

You are unusual in seeing MOTO not cancel, maybe because it had gone to a claim and you didn't complain at an earlier or LBC stage.

uksniper

Rather than take the risk, I think I will go with my account of poor signage unless there is an overwhelming disagreement by the forum regulars? I have contacted MOTO again in a last ditch attempt for them to intervene.

I've strengthened my account below;

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

3.       On the material date, the Defendant parked the vehicle on an overflow carpark at the MOTO XXXX XXXX service station approximately 10:30pm in the evening. Upon parking the vehicle, the Defendant did not see any signage along their route that would indicate a maximum parking period was in effect. No less than 35 days later, the Defendant received an invoice from the Claimant requesting payment for the alleged contravention of parking in excess of the free period. It is not possible for such contravention to have occurred as the Claimant did not ensure that the Defendant or any other competent driver would have been made aware such terms were in effect. 

4.       It is of importance that the route in which the Defendant accessed the overflow carpark was from “XXX Lane” via a side entrance rather than directly from the adjacent motorway. The Defendant has since reviewed Google street maps imagery which shows large signage indicating restrictions on free parking when entering the service station via its primary route, however these signs are absent on entrance via the Defendants route via “XXX Lane”. On the route to overflow parking from “XXX Lane”, there is one small sign which was passed by the Defendant which was only notable in daylight and by the Defendant specifically looking for a sign following the invoice being received. The sign and overflow carpark are inadequately lit at night time which relate to the conditions in which the Defendant had parked the vehicle.

5.       The Claimant has included the PCN number of the alleged contravention twice within the letter before claim and within the Particulars of Claim. This has resulted in a conscious attempt by the Claimant to increase the claim amount disingenuously which the Claimant has signed to be a statement of truth.

Coupon-mad

I don't think you need #5 as the added double recovery 'costs' are covered in the template defence lower down.

The rest is good and as long as you can evidence with photos taken at night (if you can get back there before WS and evidence stage, which will be Spring 2022) as well as GSV images, that's a strong defence.

Also a nice easy one for a Judge.  Were the terms there to be seen, lit and prominent at the entrance and within?  No?  Case dismissed.

uksniper

Just preparing my WS, is it worth noting the new CoP from the DLUHC? This wasn't about at the time to include within my defence.