Small claim advice needed

jay2896

do you have a link? I'm still trying to work out howto navigate these forums 

Coupon-mad

The poster's name is a link, it's in blue.

jay2896

Hi all, 

thanks for all of your help so far. I have been working to try and get the land owner to have the claim dropped. They seem resistant to get involved now that the case is going to court. I will continue to work on them as I feel this would be by far the easiest avenue to end this. In the meantime I have started to plan my defence. I'm struggling somewhat as I do not have full details yet of what evidence the parking company have on me. I have found bits through various correspondence. I will hold off submitting my defence as long as possible in the hope that these details come though in time for me to make adjustments. 


I'm not very articulate when it comes to writing and I have never been involved with the legal system before so lots of the language is new to me. I would be really grateful if anyone could give me some pointers on my first draft. 

thanks in advance

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:

a. Firstly the Signage at the gateway states that a PCN will be issued if the driver does not have authority to park in the designated area. On this occasion the Defendant had been given prior permission to park here by XXXXXXXX Ltd. See Witness statement 1 

b. Secondly the Defendant had a valid parking permit provided by xxxxxxx clearly displayed in the vehicle in question. See image 1

c. Thirdly it is said that the defendant exited the vehicle and walked in the opposite direction to the XXXXXXXX buildings. This does not provide proof of use of the nearby airport. XXXXXX has confirmed that the visit was in relation to the operations of the business. See witness statement 1

d. Fourthly the defendant entered the car park after 19:30 in the month of October. This was after sunset. The signage is not lit and therefore the defendant denies entering a contract with the land owner.

e. Sixthly the Signage in the area states that a charge of £100 will be applied for stopping. The £160 claimed in the claim form is an example of double recovery as it is an inflated claim demonstrating an abuse of process as seen in Excel v Wilkinson 2nd July 2020.

f.Fifthly the claim is unconscionable and unfair as a result of the consumer right act 2015.

3.  The Defendant wholly admits to parking in the said car park on the day in question. On entering the compound after sunset the defendant did not see the signage as this is small and unlit. On revisiting the site it can be seen that the signage states a charge of £100 not £160 can be applied. On the date in question the defendant was visiting the offices of XXXXXX to provide advice on the correct storage and haulage of Nutritional products. The defendant was given permission to park in the car park by XXXXXX and was provided with a valid parking permit which was displayed in the window of the vehicle. 

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.

.......

Le_Kirk

Don't send any evidence with your defence.  Keep to simple numbering using numerals not letters and just slip the parts you have written into the standard defence template.

d 5. Fourthly tThe defendant entered the car park after 19:30 in the month of October. This was after sunset. The signage is not lit and therefore the defendant denies entering into a contract with the land owner.

jay2896

Thanks for the advice. I've made some adjustments. You guys obviously have an awful lot of experience in fighting these cases. Do you think that this is a robust enough defence? is there any obvious points that I am missing. I haven't got my SAR back yet so trying to be vague so that i don't stitch myself up. 

any further advice or pointers would be much appreciated

___________________

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. 

The Signage at the gateway states that a PCN will be issued if the driver does not have authority to park in the designated area. On this occasion the Defendant had been given prior permission to park here by XXXXXXXX Ltd. 

The Defendant had a valid parking permit provided by xxxxxxx clearly displayed in the vehicle in question. 

It is said that the defendant exited the vehicle and walked in the opposite direction to the XXXXXXXX buildings. This does not provide proof of use of the nearby airport. XXXXXX has confirmed that the visit was in relation to the operations of the business. 

The defendant entered the car park after 19:30 in the month of October. This was after sunset. The signage located on the gateway to the compound is not lit and covered by foliage making it difficult to see and read. Therefore, the defendant denies entering a contract with the land owner.

The Signage in the area states that a charge of £100 will be applied for stopping. The £160 claimed in the claim form is an example of double recovery as it is an inflated claim demonstrating an abuse of process as seen in Excel v Wilkinson 2nd July 2020.

 

The claim is unconscionable and unfair as a result of the consumer right act 2015.

3.  The Defendant wholly admits to parking in the said car park on the day in question. On entering the compound after sunset the defendant did not see the signage as this is small, covered by foliage and unlit. On revisiting the site it can be seen that the signage states a charge of £100 not £160 can be applied.

On the date in question the defendant was visiting the offices of XXXXXX. The defendant was given permission to park in the car park by XXXXXX and was provided with a valid parking permit which was displayed in the window of the vehicle. 

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

Therefore, the defendant denies entering a contract with the land owner.

They are not suggesting you did.  They are alleging a contract with the Claimant.

I don't understand why you've added this when the template covers it already:

The Signage in the area states that a charge of £100 will be applied for stopping. The £160 claimed in the claim form is an example of double recovery as it is an inflated claim demonstrating an abuse of process as seen in Excel v Wilkinson 2nd July 2020.
The claim is unconscionable and unfair as a result of the consumer right act 2015.

The defence doesn't exactly look like the template defence to me, looks like you've chopped some of it out?

All paragraphs need a paragraph number.

jay2896

Thank you for your feedback. I’ll have a play and repost. 

I think the only thing I removed was the part about not being the driver which I have already admitted to. 

Redx

jay2896 said:

Thank you for your feedback. I’ll have a play and repost. 

I think the only thing I removed was the part about not being the driver which I have already admitted to. 

Then 2 should say keeper and driver , not just keeper

As mentioned above , any contract was between you and the claimant , the fact that you had landowner permission is promissory estoppel , so add that in ( Google it )

Keep the defence concise , save elaborate stories for the witness statement in several months time

Do not change any paragraphs except paragraphs 2 and 3

Postonly your adapted paragraphs below , not the rest of the template , it's your homework being checked , only your work

Each paragraph needs a number , so you will post a few paragraphs only , starting from 2 and 3 , adding extra ones in at 4 , 5 , 6 etc as required , the old 4 becomes say 7 or whatever and the final draft is renumbered accordingly , so the final draft will be about 20 to 24 paragraphs in total

So simple numbering , but for now only show us YOUR work !

No exhibits ( evidence ) is submitted with the defence , they are submitted to your local nominated court in several months time

jay2896

I really appreciate all of the guidance so far. I have had another go and made the suggested adjustments. 

With regard to 'promissory estoppel' the permission I was given was from a company that lease a property/unit as well as a number of parking bays from the landowner and not the landowner themselves. So from my understanding this wouldn't be applicable as the company are still happy to support me and will even be an witness in court if needed. I'm happy to include if you think otherwise though.  

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 Signage at the gateway states that a PCN will be issued if the driver does not have authority to park in the designated area. On this occasion the Defendant had been given prior permission to park here by XXXXXXXX Ltd. 

4. The Defendant had a valid parking permit provided by xxxxxxx clearly displayed in the vehicle in question. 

5. The defendant entered the car park after 19:30 in the month of October. This was after sunset. The signage located on the gateway to the compound is not lit and covered by foliage making it difficult to see and read. Therefore, the defendant denies entering a contract with the Claimant.

6. The Defendant wholly admits to parking in the said car park on the day in question. On entering the compound after sunset the defendant did not see the signage as this is small, covered by foliage and unlit. On revisiting the site it can be seen that the signage states a charge of £100 not £160 can be applied.

7. On the date in question the defendant was visiting the offices of XXXXXX. The defendant was given permission to park in the car park by XXXXXX and was provided with a valid parking permit which was displayed in the window of the vehicle.

thanks again

Coupon-mad

I don't think you need 3 or 4 because you've covered that in #7.