County Court Claim Form

PeanutDad

Hi Forum members, The driver got a windscreen ticket on a private road. The reason for the parking ticket was 'vehicle was parked on private property in a manner where the driver agreed to pay a parking charge as displayed by signage". Letters from the parking company Parking and Property were ignored and so were the letters from BW Legal. A county court claim was received at the registered keepers address with Issue date of 4 Oct 2021. Registered keeper has received the letter today as they were confined to another address due to being Covid positive and being ill and having to look after family members who were also ill due to being Covid positive!

No AoS was done and as mentioned above the issue date of the claim is 4 Oct 2021. Can the RK still contest this claim?

D_P_Dance

Have you read the newbies?  Jave you read other threads?  Have you complained to your MP?

KeithP

PeanutDad said:

A county court claim was received at the registered keepers address with Issue date of 4 Oct 2021.

No AoS was done and as mentioned above the issue date of the claim is 4 Oct 2021. Can the RK still contest this claim?

Without filing an Acknowledgment of Service, the deadline for the filing of a Defence was Monday 25th October.

From Tuesday 26th October the Claimant has been free to seek a Default Judgment against you.
You need to determine whether or not that Default Judgment has been made.
You can check your MCOL Claim History to find that out.

Assuming no Default Judgment has yet been made, you are now in a race.
If you file a Defence before the Claimant seeks that Judgment, then you win this heat and go through to the next round.
The converse is that should the Claimant get there first, then you lose - it's game over and you must pay the Claimant whatever the court awards.

The good news is that nothing else bad will happen before Monday.

My suggestion is that you file a Defence before 8am on Monday.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Do not try and file a Defence via the MoneyClaimOnline website. The MCOL website should now be treated as 'read only'.

PeanutDad

@KeithP Thank you for your response. I have checked MCOL and no default judgment has been made yet. I will be creating and submitting a defense as per the points you have shared above.

As mentioned this is a private road and the driver parked their car in front of their own property waiting for space to be created in their drive way. These signs were perhaps put up a week or 2 before the issuance of the windscreen ticket. The parking company were contracted by the road management company (formed, funded and headed by residents)

Would appreciate if you or anyone else can point out strong grounds for a defense as I am not sure.

Thank you!

 

KeithP

That is clearly a forbidding sign.

One cannot agree a contract to do something that is forbidden.

In other words, the next two sentences on that sign...

...are not relevant and can be ignored.

In my opinion, that is a very strong Defence.

[note: there is no letter 's' in the word Defence.]

PeanutDad

Thank you @KeithP. Here is the draft of my defence. Would appreciate any feedback:

IN THE COUNTY COURT

Claim No.: XXX

Between

(XXX) 

(Claimant) 

- and -  

XXX                   

 (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 (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 of the vehicle in question but liability is denied. It is also admitted that the defendant was the driver. 

3.  The Defendant parked in front of their own home for a very short time as access to their driveway was blocked. The defendant parked on a private road that is owned by Upton Park Roads Ltd to which the defendant as owner of the property pays annual charges to maintain the private road.

3.1 The signage put up by the Claimant is forbidding, and it is therefore impossible to form a contract. Accordingly, it is denied that there was any agreement between the Defendant and the Claimant.

The claim relates to an alleged debt arising from the driver’s alleged breach of contract, which is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 ‘parking charge notice’ (PCN).

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'd say 'stopped' not parked, in your case, and state it was merely the time taken to deal with the blocked driveway (explain the obstruction).

And add a paragraph citing the IPC Code of Practice version from that year, where it talks about grace periods.

If you are close to a default judgment just get this done, signed, dated and emailed to the CCBC and copy in the Claimant's solicitor even though you don't have to.

Send the email in working hours, not tonight, as the CCBC has a huge issue with ignoring emails sent over weekends.

PeanutDad

Thank you @Coupon-mad. Will do.

PeanutDad

Just a quick update - defence emailed to CCBC.

Coupon-mad

Got an acknowledgement from the CCBC?

tboo

PeanutDad said:

The parking company were contracted by the road management company (formed, funded and headed by residents)
 

So did the resident group supply P&PMLtd a list of whitewashed reg numbers?

PeanutDad said:

Letters from the parking company Parking and Property were ignored

Well, that was a silly move seeing you pay to maintain the road. A robust response would have seen it off but hay ho you can't turn back time.