Claim Form (county court business centre) received - 2016 PCNs x 2 + a legal letter for 3rd PCN!

Coupon-mad

Just say you sold the car so no V5C but here is a copy of the claim form and a utility bill which is more than sufficient to show it is you.  For security reasons and because it's overkill for them to ask, you won't be supplying photo ID to an ex-clamper firm of their ilk.

Don't mention the 3rd PCN.  They should flush it out anyway.

You don't need to trawl the forum for defence points/wording. The template defence thread gives you what you need and if you go back to the NEWBIES thread I also provide there, examples of certain types of defence such as residential ones, etc., to crib a paragraph or two from, for your point #3 as per the template defence thread.

Le_Kirk

RS789 said:

Thank you all for your advice so far.  I've not taken the following actions;

• I have submitted a SAR with UK Parking Control Limited - generic auto reply received
• I have emailed DCBL legal, setting out denial of the debt and confirming I've submitted an SAR with UKPC. 
• I have used the MCOL website and completed the AoS - all confirmed, PDFs etc saved. 

Now I will start trawling these forums to see what defence points I can use - any pointers here appreciated. 

I do have a question - if the SAR information doesn't come in before my deadline of defence submission (4pm on Monday 15th November 2021), does that mean I don't have the opportunity to see their side of the argument beforehand and have to go ahead in my defence without knowing what to expect? 

You were given directions to the best template defence by @KeithP here 21 October at 5:24PM <<< LINK and this is also what @Coupon_mad wrote about.  Results from the SAR will be better at witness statement stage, so don't worry about it, concentrate on defence.  You should know their side of the argument from your original PCN and from the particulars of claim on the claim form.

RS789

Thank you for all your advice and support! 

I've received the SAR from UKPC - need to go through it properly. 

I've also just received an email from DCBL ;

Dear Sirs,

We write in response to your email dated 25th October 2021.

Whilst we acknowledge your request for a hold on the case, a claim has now been issued - as such, we are unable to place any legal proceedings on hold as per process. 

Both parties should continue to follow Court directions.

Does this mean I've less time than anticipated?  Is this a scare tactic? 

I used the MCOL website and completed the AoS last week, as set out in a previous post.  

Thanks

Coupon-mad

You were not meant to ask for a hold, you can't do that at court claim stage.

RS789

Coupon-mad said:

You were not meant to ask for a hold, you can't do that at court claim stage.

Ah okay - I was confused, I thought it was one of 3 actions to take as I had posted previously. Looking back, that's for LBC - which I am past. 

Makes no difference by the looks of it in any case - I will carry on working on the defence. 

Thanks! 

RS789

Hi all, 

I've been working on the defence (due next Monday) and am seeking some guidance. I've been following the Newbies Thread (post 2) and also the Defence Template. 

In terms of the facts (paras 2-3), as the PCNs are from over 5 years ago, I've made that point and that I did not receive them, but do admit I was the registered keeper and driver of the vehicle.  Do I need to add more detail here?  I've attempted to keep it simple, rather than have too much detail. I've added in that the signage was not clear, as was the case from memory.  Is this the right place to retain such detail? 

Having received the SAR evidence from UKPC Ltd, the photos themselves show that the sign was only half there (half missing!!) for one of the two PCNs, but I assume that's for witness statement stage? 

I note in the defence template, that there is no reference to Excel v Wilkinson (re unlawful amounts) .  The defence template does however include (at para 5) reference to exaggerated amounts.  Does this cover it, or should Excel v Wilkinson be included in my defence, maybe at para 5 also? 

Finally, I've retained the remainder of the template paras, but unsure if they should all be included. For example, para 16 - I do not know if the reference to landholders definitions being met is relevant? 

I've pasted the draft below! 

Thanks

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 but liability is denied.

3.  The Defendant has no recollection of receiving the two PCN claims in question.  Given the claim is for two PCNs from over five years ago, the defendant cannot recall the specific details of those two dates.  The defendant asserts that the signage in the carpark was not clear.  

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.

Defendant’s signature:

Date:

Coupon-mad

I note in the defence template, that there is no reference to Excel v Wilkinson (re unlawful amounts) 

I held off mentioning it due to the VCS v Percy case (see other threads) which sort of unpicked the argument in Wilkinson, at least for the Leeds/Bradford circuit. The template says enough about false costs.

I would add to your #3 that ends 'not clear' with the words 'The Claimant's own photo evidence provided only now, in response to a SAR, shows a hopelessly inadequate sign broken in half.  The Claimants are put to strict proof if the appearance, position and condition of the signs on the material dates.

Le_Kirk

If it is your assertion that you were not there/can't remember, you might want to adjust your comment about the signage.  If you weren't there you couldn't possibly have seen it BUT you could on a subsequent visit for research purposes after receiving the PCN.

RS789

Le_Kirk said:

If it is your assertion that you were not there/can't remember, you might want to adjust your comment about the signage.  If you weren't there you couldn't possibly have seen it BUT you could on a subsequent visit for research purposes after receiving the PCN.

Thank you - I was wondering about this.  I lived at these flats temporarily but the signs/information was always changing.  I think I will amend to talk about generally my experience of the car park, then reference the SAR photo's backing up my assertion that the parking in general wasn't well sign posted.   

Coupon-mad

Use the words I suggested then.  They are hoist by their own petard!