Court Claim for Old Milton Green Britannia parking unlawful camera

95Rollers

Coupon-mad said:

ricky_balboa said:

Coupon-mad said:

In 2019 the consideration period was 10 minutes.

Ok, thanks for that. Where can i find that information for 2019?

Google and you find all the Codes of Practice in one place.

https://www.britishparking.co.uk/code-of-practice-and-compliance-monitoring

ricky_balboa

I have drafted my defence ready to be submitted by Tuesday 4pm. If someone could have a look over it any advice or criticism is gratefully received.

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. The facts of the matter are that from the driver’s seat there were no visible signs stating the claimants terms when turning right on a busy road to enter the car park area and driving to where the defendant parked. On the foot route the defendant made from their parked car to Greggs restaurant and back, there were no signs visible. This is in contravention of The British Parking Association (BPA) Approved Operator Scheme (AoS) version 7 2018 section 18.2 & 18.3 under which the claimant is an active member.

4. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. The signs also do not state the parking charge itself at the entrance and exit of the car park; I understand that is a requirement.

5. The Defendant puts the Claimant to full proof of the location of the alleged contravention. The Claim relies on two pictures of the car showing no identifiable landmarks which could have been taken anywhere.

6. There can be no assumed ‘keeper liability' as Britannia Parking Ltd have failed the POFA requirements for 'adequate notice' of the unexpected parking charge and no 'relevant contract' known or accepted, unlike in the Parking Eye v Beavis case where the Defendant confirmed he knew about the terms.

7. Due to the sparseness of the Particulars of Claim it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

The Claimant is also in breach of paragraph 20.14 of British Parking Association Code of Practice which specifies that ‘when serving a Notice to Keeper, you must also include information telling the keeper the ’reasonable cause’ you had for asking the DVLA for their details’. No such information was included in the NTK received by the Defendant.

8. The Defendant parked in a car park that had a free 20 minute stay only. This is administered via ANPR.
The car park is not local to me and had never been visited prior. The car park serves around 8-10 small shops and restaurants. The Defendant assumed that the parking was for users of the facilities. There is no facility to buy a ticket and with the apparent lack of signage, the driver assumed that at least an hour would be ok to use one of the restaurants there for some refreshments.

9. The ANPR exit camera used by the claimant was erected without planning permission and has now been removed following an order by the local council after retrospective planning permission was rejected.

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

10.1 The signage states that "Britannia Parking manage and control this car park". Britannia Parking are therefore acting as an agent of the landowner. As an agent, the Claimant has no legal right to bring such a claim in their name. Any claim should be in the name of the landowner.
Neither the claim form, nor the signage state who the owner of the land is.

11. The alleged overstay was 15 minutes but this would have been time spent in moving traffic, arriving, driving round to find a parking space, parking & locking the car, and at the end, a reasonable period of grace, to leave. This is not a 'period of parking' (under the POFA definition) that was in any way exceeded. Any contravention of allowed parking time is denied.

11.1. Further, the claimed timing is not accepted. The Claimant is put to strict proof of the synchronisation of the timer relating to the entry camera and the separate timer at the exit and the reliability of the timestamps on the images and the position of the car, and are required to disclose how many images exist of the car in those two places on the roadway.

11.2. Even if this is evidenced to be the location stated, the exit photograph shows the car no longer in the private car park, but queuing or slowly approaching a main road/public highway at an unidentified exit roadway junction. This is clearly non-parking activity that in itself can take several minutes of queuing or waiting at a junction, especially at busy periods when a driver cannot drive straight out. The Claimant is put to strict proof of the length of time the VRN was captured approaching and/or waiting at the exit, and must produce all consecutive raw images, not just the final one that the Defendant avers can add minutes to the alleged 'overstay', given the fact that an ANPR camera can read a number plate every second.

11.3. Even if the Claimant can demonstrate that the car was indeed 'on site' and in the car park for a proven and synchronised 15 minutes in addition to the 20 minutes of free parking, this would have been entirely within the grace periods of 10 minutes prior to entering a contract to and 10 minutes at the end of a parking event, set out in paragraph 13 of BPA Code of Practice (BPA CoP). relevant version 2018.

11.4. The version of mandatory CoP rules applicable at the time of this parking event allowed the driver two periods either side of allowed parking time. The first was a reasonable 'observation period' in which to decide if they were going to stay or go (which would have included driving in, looking for a space, parking & locking the car, then reading T&Cs displayed in the signage). The second was an additional stand-alone 'grace period' at the end of the parking period which the BPA CoP stated was to be a minimum of 10 minutes.

11.5. It is averred that this Claimant has failed to pay regard to the mandatory CoP which was considered effectively 'regulation' by the Judges at the Supreme Court. The Claimant's case appears to be based on the inherently flawed position that a driver can be penalised for taking just 5 minutes on arrival to find a space and park and read the signs at a busy retail park.

ricky_balboa

12. 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.

13. 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.

14.       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.  

15.  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').

16.  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.

17.  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.  

18.  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.

19.   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.  

20.   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.

21.       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.

22.   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.

23.   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.

 24.  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:

25.   (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.

26.   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.

Le_Kirk

3. The facts of the matter are that from the driver’s seat there were no visible signs stating the claimant's terms when turning right on a busy road to enter the car park area and driving to where the defendant parked. On the foot route the defendant made from their parked car to Greggs restaurant and back, there were no signs visible. This is in contravention of The British Parking Association (BPA) Approved Operator Scheme (AoS) version 7 2018 section 18.2 & 18.3 under which the claimant is an active member.
4. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. The signs also do not state the parking charge itself at the entrance and exit of the car park; I understand that is a requirement.

You require an apostrophe in claimant's.  Do you mean turning right from a busy main road across the oncoming traffic into the car park?  In 3 you mention there were no signs visible; in 3, you talk about what is missing from the signs!  You might need to make it clear to the judge that this was determined by an "on-foot" investigation after receipt of the PCN at a later date.  You have used "I" whereas it should be "the defendant".  All paragraphs require a number and you have an orphan paragraph after #7.

ricky_balboa

Many thanks Le_Kirk for taking them time to look at the defence. I have now updated the draft as shown. (I have left out the paragraphs 13 onwards which is the Abuse of Process template that i will include as previously posted).

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. The facts of the matter are that from the driver’s seat there were no visible signs stating the claimant’s terms when turning right from a busy main road across the oncoming traffic into the car park and also to where the defendant parked. On the foot route the defendant made from their parked car to Greggs restaurant and back, there were no signs visible. This is in contravention of The British Parking Association (BPA) Approved Operator Scheme (AoS) version 7 2018 section 18.2 & 18.3 under which the claimant is an active member.

3.1. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

4.. After receiving the PCN, an on-foot investigation at a later determined that the signs also do not state the parking charge itself at the entrance and exit of the car park. The Defendant understands that is a requirement.

5. The Defendant puts the Claimant to full proof of the location of the alleged contravention. The Claim relies on two pictures of the car showing no identifiable landmarks which could have been taken anywhere.

6. There can be no assumed ‘keeper liability' as Britannia Parking Ltd have failed the POFA requirements for 'adequate notice' of the unexpected parking charge and no 'relevant contract' known or accepted, unlike in the Parking Eye v Beavis case where the Defendant confirmed he knew about the terms.

7. Due to the sparseness of the Particulars of Claim it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

8.  The Claimant is also in breach of paragraph 20.14 of British Parking Association Code of Practice which specifies that ‘when serving a Notice to Keeper, you must also include information telling the keeper the ’reasonable cause’ you had for asking the DVLA for their details’. No such information was included in the NTK received by the Defendant.

9. The Defendant parked in a car park that had a free 20 minute stay only. This is administered via ANPR.
The car park is not local to me and had never been visited prior. The car park serves around 8-10 small shops and restaurants. The Defendant assumed that the parking was for users of the facilities. There is no facility to buy a ticket and with the apparent lack of signage, the driver assumed that at least an hour would be ok to use one of the restaurants there for some refreshments.

10. The ANPR exit camera used by the claimant was erected without planning permission and has now been removed following an order by the local council after retrospective planning permission was rejected.

11. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

11.1 The signage states that "Britannia Parking manage and control this car park". Britannia Parking are therefore acting as an agent of the landowner. As an agent, the Claimant has no legal right to bring such a claim in their name. Any claim should be in the name of the landowner.
Neither the claim form, nor the signage state who the owner of the land is.

12. The alleged overstay was 15 minutes but this would have been time spent in moving traffic, arriving, driving round to find a parking space, parking & locking the car, and at the end, a reasonable period of grace, to leave. This is not a 'period of parking' (under the POFA definition) that was in any way exceeded. Any contravention of allowed parking time is denied.

12.1. Further, the claimed timing is not accepted. The Claimant is put to strict proof of the synchronisation of the timer relating to the entry camera and the separate timer at the exit and the reliability of the timestamps on the images and the position of the car, and are required to disclose how many images exist of the car in those two places on the roadway.

12.2. Even if this is evidenced to be the location stated, the exit photograph shows the car no longer in the private car park, but queuing or slowly approaching a main road/public highway at an unidentified exit roadway junction. This is clearly non-parking activity that in itself can take several minutes of queuing or waiting at a junction, especially at busy periods when a driver cannot drive straight out. The Claimant is put to strict proof of the length of time the VRN was captured approaching and/or waiting at the exit, and must produce all consecutive raw images, not just the final one that the Defendant avers can add minutes to the alleged 'overstay', given the fact that an ANPR camera can read a number plate every second.

12.3. Even if the Claimant can demonstrate that the car was indeed 'on site' and in the car park for a proven and synchronised 15 minutes in addition to the 20 minutes of free parking, this would have been entirely within the grace periods of 10 minutes prior to entering a contract to and 10 minutes at the end of a parking event, set out in paragraph 13 of BPA Code of Practice (BPA CoP). relevant version 2018.

12.4. The version of mandatory CoP rules applicable at the time of this parking event allowed the driver two periods either side of allowed parking time. The first was a reasonable 'observation period' in which to decide if they were going to stay or go (which would have included driving in, looking for a space, parking & locking the car, then reading T&Cs displayed in the signage). The second was an additional stand-alone 'grace period' at the end of the parking period which the BPA CoP stated was to be a minimum of 10 minutes.

12.5. It is averred that this Claimant has failed to pay regard to the mandatory CoP which was considered effectively 'regulation' by the Judges at the Supreme Court. The Claimant's case appears to be based on the inherently flawed position that a driver can be penalised for taking just 5 minutes on arrival to find a space and park and read the signs at a busy retail park.

KeithP

At a quick glance, I would leave out para 11.1. Your assertions aren't true.

Coupon-mad

Seconded.

And remove this, if you are saying you saw no signs then don't also say you stood and read signs:

Looking for a space, parking & locking the car, then reading T&Cs displayed in the signage). 

1505grandad

Also  -  "6. There can be no assumed ‘keeper liability' as Britannia Parking Ltd have failed the POFA......"

As you have admitted being RK and driver surely the above is irrelevant.

ricky_balboa

KeithP said:

At a quick glance, I would leave out para 11.1. Your assertions aren't true.

Many thanks for the advice. I have been in contact with a previous forumite who won a case in court with Britannia following a pcn from the same car park. They have the details of the landowner agreement with Britannia. If i receive this in time i was hoping to include it in the Defence as it shows that the reference numbers are different from the car park signage. If i don't receive this information i would remove the paragraph as per yours and coupon-mads advice.

ricky_balboa

Coupon-mad said:

Seconded.

And remove this, if you are saying you saw no signs then don't also say you stood and read signs:

Looking for a space, parking & locking the car, then reading T&Cs displayed in the signage). 

Thanks for the advice. I have removed the part about reading the signage as i didn't read the signs.