County Court Claim Form from UKPC

moe123

Dear Readers, 
I've received a county court claim form for a ticket in January 2016 (almost 6years ago) from UK Parking Control Limited. I've got a skeleton defence ready that i used back in 2016 in court that got me out of a similar fine and wanted to check if my points are still valid. 

1. My defence to this claim relies principally on seven main points, as follows:

a) Lack of Standing by Claimant: The Claimant is not the landowner of the car park, and has no proprietary interest in it. This means that the Claimant, as a matter of law, has no locus standi to litigate in their own name. Any consideration is provided by the landholder, and only they can sue for damages or trespass.

With regard to this point, there are two Court of Appeal judgments of note, ParkingEye v Somerfield [2012 EWCA Civ 1338] and HMRC v VCS [2013 EWCA Civ 186]. In the first, the court ruled that the parking company could not take legal action in their own name. In the second the court ruled they could. The nature of the relationship between landowner and car park operator, and the wording of the contract between them, is key to distinguishing these two cases. It is instructive therefore to compare the current relationship between Parking Control Management (UK) Limited and landowner, and the wording of the contract, to see whether this more closely resembles ParkingEye v Somerfield or HMRC v VCS. The defendant submits that it is obvious the relationship is more like the ParkingEye v Somerfield case.

In 3JD04329 ParkingEye v Martin (12/05/2014 St Albans) District Judge Cross found ParkingEye’s contract to be more like the Somerfield case than VCS v HMRC, and dismissed the claim. No transcript is currently available.

b) No Loss Suffered by Claimant: Their claim is based on damages for alleged breach of contract. It is a fundamental principle of English Law that a party who suffers damages through breach of contract can only seek through court action to be put back in the same position as they would have been if the breach had not occurred. In order to do so, they must demonstrate their actual, or genuine, pre-estimate of loss. I submit that no loss has been suffered by the Claimant as a result of any alleged breaches of contract on my part. Any losses are due to the landholder, not the Claimant. I further submit that the loss to the landholder is zero or negligible.

With regard to this point, I rely upon the following cases and evidence:

OBServices v Thurlow (Worcester County Court, 2011) (Appeal hearing before Circuit Judge).

3JD00517 ParkingEye v Clarke (Barrow-in-Furness, 19/12/2013) Deputy District Judge Buckley ruled that the amount charged was not a genuine pre-estimate of loss as any loss was to the landowner and not the Claimant. “The problem which the present Claimants have, however, in making this assessment is that on any view, any loss is not theirs but that of the land owners or store owners”

3JD02555 ParkingEye v Pearce (Barrow-in-Furness, 19/12/2013) This case followed on from the previous case and Deputy District Judge Buckley ruled the same way. (No transcript is available)

3JD04791 ParkingEye Ltd v Heggie (Barnsley, 13/12/2013). The judge ruled that the amount charged by ParkingEye was not a genuine pre-estimate of loss as the loss for a four minute overstay was negligible.

3JD03769 ParkingEye v Baddeley (Birmingham 11/02/2014) District Judge Bull. The judge found that the defendant's calculation of ParkingEye’s pre-estimate of loss of around £5 was persuasive. As ParkingEye could not explain how their alternate calculation of £53 was arrived at, he accepted the defendant's calculations. The transcript is not available.

The British Parking Association (BPA) have ruled the normal maximum charge for breach of contract should be £100. However, they also rule that the charge must be a genuine pre-estimate of loss – the parking company cannot just charge an arbitrary amount. The Office of fair Trading agreed with this, pointing out that all costs must be directly attributable to the breach, that day to day running costs could not be included and that the charge cannot be used to create a loss where none exists.

c) No contract with the claimant. Any contract must have offer, acceptance and consideration both ways. There is no consideration from PCM (UK) Ltd to the motorist nor vice-versa.

In unilateral contracts, acceptance of the offer & consideration is performance of the act. However, acceptance cannot occur if the offeree does not have knowledge of the offer (Gibbins v Proctor). And in the facts of this case, the driver of the said vehicle (whomever it may be on the said dates), was unaware of the sign & restrictions.

Further, the motive of the offeree in performing a condition bears some weight on the case. If a defendant sees the offer and then forgets about it when performing the condition he/she thus gives no consideration and therefore cannot give assent without knowledge of the offer. Moreover, total ignorance of the offer applies too (R v Clarke 1927).

What is also worthy of note is that it would appear in 1.3 of GP1 of the Claimant’s contract with the land owner that “Terms of parking: Permit holders at all times” which suggests that there is a forbidding regulation nature, thus there is no contract between the Defendant and Claimant as nothing is offered in exchange for the £100.

This would make the driver a trespasser, and in such cases damages are limited to actual costs. Where there are no damages, a nominal charge of £1 is usually made by the court. In English law, trespass to land involves the “unjustifiable interference with land which is in the immediate and exclusive possession of another”. This appears to be a more fitting description of the claim given the circumstances, contrasted with the Claimant’s attempt to depict it as a unilateral contract.

With regard to this point, I will rely on the following cases:

Parking Control Management (UK) v Christopher Bull 2016. District Judge Glen, on the case of Beavis, said “… that analysis just does not work in this case. If the notice had said no more than if you park on this roadway you agree to pay a charge then it would have been implicit that PCM was saying we will allow you to park on this roadway if you pay £100 and I would agree with Mr Samuels’ first analysis that essentially the £100 was a part of the core consideration for the licence and was not a penalty for breach. The difficulty is that this notice does not say that at all. This notice is an absolute prohibition against parking at any time, for any period, on the roadway. It is impossible to construct out of this in any way, either actually or contingently or conditionally, any permission for anyone to park on the roadway. All this is essentially saying is you must not trespass on the roadway. If you do we are giving ourselves, and we are dressing it up in the form of a contract, the right to charge you a sum of money which really would be damages for trespass, assuming of course that the claimant had any interest in the land in order to proceed in trespass.”

3JD09409 ParkingEye v Green. (08/05/2014 High Wycombe). Judge Jones ruled there could be no contract in a free car park as there was no consideration from the motorist. “"If you give me your coffee mug as a gift, and it then cracked five minutes later, I couldn’t sue you." There is no transcript available for this case.

Further, the classic definition of consideration given by Lush J in Currie v Misa 1875 is ‘a valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered or undertaken by the other’. In other words, a promisee should not be able to enforce a promise unless he has given (or promised to give) something in exchange for the promise or unless the promisor has obtained (or been promised) something in return. No such consideration had been given.

Moreover, consideration must move from the promisee. It is a personal obligation – consideration cannot move to a third party. If no consideration is provided by the promisee themselves they cannot sue for breach of contract (Tweddle v Atkinson 1861).

Past consideration is also not good consideration. The general rule is a promise cannot be given after an act (Re McArdle). If a party voluntarily performs an act, then the other party makes a promise, consideration for that promise is said to be in the past.

d) Regarding the charge dated 09 October 2015 in Hatfield, it can be deduced that the particular driver on this occasions was a resident of the area and permit holder. The latter will be provided on the court date.

e) The Unfair Terms in Consumer Contract Regulations 1999 applies. It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.

The European Court of Justice case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European

Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);

Article 3(1) of Directive 93/13 must be interpreted as meaning that:

– the concept of ‘significant imbalance’ to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out;

– in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of staying over free time, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.

It is asserted that any competent solicitor would have negotiated the charge to be equal to a genuine pre-estimate of loss, being the normal legal situation provided for by the national law in force.

The Claimant relies on the Court of Appeal judgment in the case of ParkingEye v Beavis. However, in that case the court applied the wrong test for imbalance (para 34 and also para 37, 38)

The judge […] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.

It is also submitted that the European Court of Justice definition of imbalance must take precedence. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.

moe123

f) The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies.

Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. All these contracts are performed on-premises, but concluded in different ways.

The regulations define an on-premises contract as: “on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as: “distance contract” means a contract concluded between a trader

and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

This is clearly an organised service-provision scheme (for parking). The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer. There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

This is therefore a distance contract.

None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.

g) The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty.

The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.

As previously explained, the parking charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.

In any case, all costs are due to the cost of enforcement, which was established in ParkingEye v Beavis to be an average of around £18 per ticket issued. These can therefore be mitigated by taking no action. The charge of £100 is primarily intended as a deterrent. It is, therefore, an unenforceable penalty.

The charge for breach of contract is collected on behalf of the landowner. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.

Each case must turn on its own fact and the facts of that case are different to this.

The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.

The social justification was because the car park was in a town centre near to a railway station and so might be abused by commuters who stayed all day. Additionally it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. ParkingEye have not established any social justification in this particular case.

Additionally the sum is roughly equivalent to a week’s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.

Conclusion:

I deny that I am liable to the Claimant for the sums claimed, or any amount at all. I invite the Court to strike out the claim as being without merit under breach of contract

Thank you all for reading if you could let me know of any changes that need to be made or if any of these points are no longer valid. Kind Regards M 

Sorry had to be posted in 2 sections 

KeithP

What is the Issue Date on your County Court Claim Form?

moe123

11 oct this year 

KeithP

KeithP said:

What is the Issue Date on your County Court Claim Form?

moe123 said:

11 oct this year 

With a Claim Issue Date of 11th October, you have until Monday 1st November to file an Acknowledgment of Service but 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 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'.

Fruitcake

I suggest you bin that defence and start again. Not a genuine pre-estimate of loss went out with the infamous Beavis case in 2015. I haven't checked any further, but I suggest you use the ready written template defence from the sticky Announcements at the top of the forum.

Only show us the parts of the template that you change, usually paragraphs 2 and 3.

Coupon-mad

Yep, bin that well out of date defence and use the template defence.

D_P_Dance

The fact that you cite noloss indicates that you have not read the newbies, please do so.  Have you complained to your MP?

moe123

Thanks all i'm working on my defence currently and just about to start the AoS, also should i be contesting jurisdiction?

KeithP

moe123 said:

Thanks all i'm working on my defence currently and just about to start the AoS, also should i be contesting jurisdiction?

Read again the guidance in that Dropbox file I pointed you towards.
Step 9 in there has your answer.

moe123

thank u amigo